CAFA'S impact on class action lawyers

University of Pennsylvania Law Review

Volumn 156, Issue 6, 2008, Pages 1593-1627

  Erichson, Howard M ^a  

^a Seton Hall Law School ^*

Author keywords

[No Author keywords available]

Indexed keywords

EID: 54849419566     PISSN: 00419907     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Conference Paper

References (183)

1. Pub. L. No. 109-2, 119 Stat. 4 (codified in scattered sections of 28 U.S.C).
2. See, e.g., Remarks on Signing the Class Action Fairness Act of 2005, 41 PUB. PAPERS 265, 266 (Feb. 18, 2005) (reproducing President Bush's remarks that class actions can be "manipulated for personal gain," quoting an editorial calling class actions "an extortion racket");
3. CONG. REC. H726 (daily ed. Feb. 17, 2005) (statement of Rep. Sensenbrenner) (supporting CAFA in order to "keep class members from being used by the lawyers they never hired to engage in litigation they do not know about or to extort money they will never see");
4. CONG. REC. S1007 (daily ed. Feb. 7, 2005) (statement of Sen. Hatch) (describing the "intolerable practice" of lawyers gaming the system and stating that "many believe the only interests served by these settlements are those of the class counsel");
5. Chuck Grassley, Should Congress Step in To Reform the Current System of Class-Action Lawsuits?, INSIGHT ON THE NEWS, Nov. 12, 2002, at 46, 46 (describing the need for CAFA because of class actions in which "the plaintiffs' lawyers made piles of cash, while the plaintiffs received little of anything").
6. See, e.g., Editorial, Reforming Class-Action Suits, CHRISTIAN SCI. MONITOR, Apr. 17, 2003, at 10 ("Class-action suits have also become an ATM for unscrupulous lawyers, who win millions of dollars for themselves but sometimes leave clients empty-handed.");
7. Jennifer Garrett, Class Actions Get a Bad Reputation, CORP. REP. WIS., Nov. 2004, at 26, 26 ("Unscrupulous lawyers use class actions to seek windfall payouts for their work with little redress for their clients.");
8. Alan Levins, Op-Ed., Law Needed To Stop Abuses by Unethical Class-Action Attorneys, S.F. CHRON., Aug. 10, 1999, at A19 ("These unscrupulous individuals treat the suits as business ventures, manipulating the system to increase their own material wealth, often at the expense of their clients and other class-action members.");
9. Tom McCann, Class Actions: The Battle Heats Up, CHI. LAW., Apr. 2004, at 8, 60 ("You have class members getting dollar-off coupons while their lawyers reap millions. You can see how such a system can be corrupted by unscrupulous trial lawyers." (quoting tort reform advocate Victor Schwartz)).
10. See, e.g., Levins, supra note 3 (urging passage of CAFA to "put a halt to some of the more extreme abuses by unprincipled plaintiffs' attorneys").
11. See, e.g., Editorial, Actions Without Class, WASH. POST, Aug. 27, 2001, at A14 ("[T]he incentive structure of modern class-action litigation encourages bad behavior by lawyers who are accountable to nobody.").
12. Pub. L. No. 104-67, 109 Stat. 737 (codified in scattered sections of 15 U.S.C).
13. 521 U.S. 591 (1997).
14. 527 U.S. 815 (1999).
15. FED. R. CIV. P. 23(c), (e), (g), (h) (as amended 2003). An earlier round of proposed Rule 23 amendments resulted only in the 1998 adoption of the interlocutory appeal provision of Rule 23(f). FED. R. CIV. P. 23(f) (as amended 1998).
16. See Nathan Koppel, In Role Reversal, Melvyn Weiss Is Indicted, WALL ST. J., Sept. 21, 2007, at A11;
17. Michael Parrish, Ex-Partner at Law Firm Pleads Guilty in Kickback Case, N.Y. TIMES, Oct. 10, 2007, http://www.nytimes.com (search archive for tide).
18. See Jay Weaver, Ex-Top Lawyer Robles Faces 15 Years in Jail, MIAMI HERALD, Sept. 18, 2007, available at 2007 WLNR 18260565. The criminal matter involved Robles' handling of nonclass settlements for thousands of asbestos plaintiffs, rather than a class action, although Robles is known as a class action lawyer.
19. See, e.g., Julie Kay, Along for the Ride, DAILY BUS. REV. (Fla.), Oct. 20, 2000, at 10 ("While some Miami lawyers are just getting into class actions, Louis Robles has specialized in them since 1974. He's raked in millions in fees by finding his own class-action lawsuits and getting in on the ground floor, not by following the pack and then fighting to become lead counsel.").
20. See Andrew Wolfson, Lawyers in Diet-Drug Case Are Indicted, COURIER-JOURNAL (Louisville, Ky.), June 15, 2007, at 1A (reporting the indictment of mass tort lawyers Shirley Cunningham, William Gallion, and Melbourne Mills, Jr.).
21. See, e.g., Samuel Maull, Trial To Decide if Law Firm Fattened Fen-Phen Profit, STARLEDGER (Newark, N.J.), Mar. 30, 2007, at 64;
22. Shelly Whitehead, Fen-Phen Suit Heads to Mediation, KY. POST, Apr. 24, 2007, at 1A.
23. 127 S. Ct. 1955 (2007).
24. In Twombly, the Court emphasized the size of the class action as one of the reasons to demand a well-supported complaint before permitting the plaintiffs to obtain expensive discovery: That potential expense is obvious enough in the present case: plaintiffs represent a putative class of at least 90 percent of all subscribers to local telephone or high-speed Internet service in the continental United States, in an action against America's largest telecommunications firms (with many thousands of employees generating reams and gigabytes of business records) for unspecified (if any) instances of antitrust violations that allegedly occurred over a period of seven years. Id. at 1967.
25. The interpretation of the class certification standard continues to develop, of course, and courts generally have become stingier about certifying class actions. For a useful analysis of recent developments on class certification, see John C. Coffee Jr. & Stefan Paulovic, Class Certification: Developments over the Last Five Years 2002-2007, 8 Class Action Litig. REP. (BNA) S-787 (Oct. 26, 2007). Similarly, it is an exaggeration to say that Amchem and Ortiz have left untouched the class certification standard. One cannot understand the current meaning of Rule 23(a) (4) adequacy or Rule 23(b) (3) predominance without Amchem, nor can one understand the current approach to Rule 23(b)(1)(B) limited funds without Ortiz. The Supreme Court treated those cases, however, as applications of existing class certification standards, rather than as a break.
26. ALEXIS DE TOCQUEVILLE, DEMOCRACY IN AMERICA 254 (Harvey C. Mansfield & Delba Winthrop trans., Univ. Chi. Press 2000) (1835).
27. "It is the generally accepted view that diversity jurisdiction was established to provide access to a competent and impartial tribunal, free from local prejudice or influence, for the determination of controversies between citizens of different states." 15 JAMES WM. MOORE ET AL., MOORE'S FEDERAL PRACTICE § 102App.03[1] (3d ed. 1997) (citing Burgess v. Seligman, 107 U.S. 20, 34 (1883)); see also Burford v. Sun Oil Co., 319 U.S. 315, 336 (1943) (Frankfurter, J., dissenting) ("It was believed that, consciously or otherwise, the courts of a state may favor their own citizens.").
28. "The primary purpose of the 1875 grant of federal question jurisdiction is to ensure the availability of a forum designed to minimize the danger of hostility toward, and specially suited to the vindication of, federally created rights." 15 MOORE ET AL., supra note 18, § 103.03 (citing Hunter v. United Van Lines, 746 F.2d 635, 647 (9th Cir. 1984); Ivy Broad. Co. v. Am. Tel. & Tel. Co., 391 F.2d 486, 492 (2d Cir. 1968)).
29. See, e.g., Remarks on Signing the Class Action Fairness Act of 2005, supra note 2, at 266 (providing President Bush's remarks on the need for the legislation so business defendants can avoid "sympathetic local courts" and "friendly local venues"); AM. TORT REFORM ASS'N, JUDICIAL HELLHOLES 2004, at 15 (2004) [hereinafter ATRA 2004 REPORT], available at http://www.atra.org/reports/hellholes/2004/hellholes2004.pdf ("For some reason, these class action lawyers do not want to go to Federal courts. Now, why is that? Because they can forum shop into Madison County, IL, where they get judges and jurors to hammer the defendants with outrageous verdicts that benefit basically only the attorneys." (quoting Sen. Orrin Hatch)).
30. CAFA does more than simply expand federal jurisdiction, and its other provisions drive home the message of mistrust. The statute constrains the use of coupon settlements, reflecting the expectation that lawyers cannot be trusted to settle in the class's best interests. It also requires notice of proposed class settlements to government authorities, on the theory that the class's lawyers cannot be trusted to present the full story to the court, and that additional monitors are needed to protect class members' interests.
31. See Supreme Tribe of Ben-Hur v. Cauble, 255 U.S. 356, 366-67 (1921) (requiring, for diversity jurisdiction in a class action, complete diversity of citizenship between the named class representatives and the defendants).
32. See Strawbridge v. Curtiss, 7 U.S. (3 Cranch) 267, 267 (1806) (interpreting the diversity jurisdiction statute to require complete diversity of citizenship).
33. See 28 U.S.C. § 1441 (b) (2000) (disallowing removal based on diversity jurisdiction if any defendant is a citizen of the forum state).
34. See id. § 1332 (authorizing diversity jurisdiction only for claims in which the amount in controversy exceeds $75,000); Snyder v. Harris, 394 U.S. 332, 338 (1969) (requiring each class member to meet the amount-in-controversy requirement, rather than allowing aggregation of damages). In Exxon Mobil Corp. v. Allapattah Services, Inc., 545 U.S. 546, 559 (2005), the Supreme Court interpreted the supplemental jurisdiction statute, 28 U.S.C. § 1367, to permit federal jurisdiction over class actions in which at least one member meets the amount-in-controversy requirement, overruling Zahn v. International Paper Co., 414 U.S. 291 (1973). While the Exxon Mobil decision expands diversity jurisdiction over certain class actions, it does not reach class actions in which no class member's claim exceeds $75,000, nor does it alter the complete diversity requirement.
35. 28 U.S.C. § 1332(d)(2), (6) (Supp. V 2005).
36. Id. § 1453(b).
37. Id. § 1332(d) (3)-(4).
38. See Stephen B. Burbank, The Class Action Fairness Act of 2005 in Historical Context: A Preliminary View, 156 U. PA. L. REV. 1439, 1536 (2008).
39. Remarks on Signing the Class Action Fairness Act of 2005, supra note 2, at 265-66.
40. Id. at 266.
41. Id.
42. CAFA, Pub. L. No. 109-2, § 2(a)(3), 119 Stat. 4, 4 (2005).
43. 151 CONG. REC. S1007 (daily ed. Feb. 7, 2005) (statement of Sen. Hatch).
44. Id.
45. 151 CONG. REC. H734 (daily ed. Feb. 17, 2005) (statement of Rep. Cannon). Cannon spoke of "the game the class action lawyers play here and how they go about abusing the court systems." Id. Like Hatch, Cannon emphasized the potential for abuse in essentially clientiess litigation: The first thing they do is come up with an idea for a lawsuit. And then they find a named plaintiff. It does not have to be someone who is actually injured in the process. All the lawyer really needs is an idea for a lawsuit and potential defendants who have deep pockets. Id. Representative Sensenbrenner supported the inclusion of a consumer bill of rights to "keep class members from being used by the lawyers they never hired to engage in litigation they do not know about or to extort money they will never see." 151 CONG. REC. H726 (daily ed. Feb. 17, 2005) (statement of Rep. Sensenbrenner).
46. Grassley, supra note 2, at 46. He drives the point home by describing several examples of "consumer-unfriendly" class actions, concluding that, "[r]egardless of wrongdoing, such cases have one constant the plaintiffs' lawyers made piles of cash, while the plaintiffs received little of anything." Grassley linked the problem of unscrupulous lawyers to that of untrustworthy judges, stating that such lawyers "look for courts that are quick to certify a class without adequately considering the interests of all class members, or courts that aren't careful in evaluating whether the proposed class meets the required criteria. Those state courts also are more likely to rubber-stamp settlement proposals without scrutinizing them for fairness." Id.
47. Levins, supra note 3.
48. Id.; see also Dan Kelly, Class Action Suits Enrich Lawyers While Consumers Get Pennies, READING EAGLE (Pa.), Dec. 31, 2003, at A1 ("Lawyers abuse the class-action system by bringing hundreds of national class actions in state courts that have little or no connection to the controversy, the official said." (quoting an official of the defense lobby Class Action Coalition)).
49. Editorial, supra note 5.
50. Id.
51. Editorial, Restoring Class to Class Actions, WASH. POST, Mar. 9, 2002, at A22.
52. Id.
53. See Garrett, supra note 3, at 26 ("Unscrupulous lawyers use class actions to seek windfall payouts for their work with little redress for their clients. They are aided by a handful of renegade state court jurisdictions that have allowed class action cases to proceed to settlement or judgment without much precedent or, critics argue, merit.").
54. See, e.g., Remarks on Signing the Class Action Fairness Act of 2005, supra note 2, at 265-66 (praising the "valuable purpose" served by class actions before bashing them as an "extortion racket"); Editorial, supra note 3 (opening with the statement that "[c]lass actions are an important tool for protecting citizens' rights" before explaining the need for CAFA to curb abuse).
55. Class action attorney Jerome Ringler argued, for instance:
56. The act's economic unfairness originates from a grave misperception: that plaintiffs' attorneys make too much money, thus compelling a congressional response. Are plaintiffs' attorneys, then, the first of many professionals to face this brand of congressional scrutiny? How much longer until Congress decides that doctors or actors or athletes - or defense attorneys - make too much money? Jerome Ringler, The Unfairness of the Class Action Fairness Act, L.A. LAW., Mar. 2006, at 52, 52.
57. See Elizabeth J. Cabraser, The Class Action Counterreformation, 57 STAN. L. REV. 1475, 1476 (2005) ("The admitted goal of congressional class action 'reform' is to save class actions by destroying them as viable state court proceedings and transferring them (at the whim of any single class member or defendant) to the federal system, where, the lobbyists in favor of 'reform,' at least, have promised the suits will languish and die.") (citing CitiGroup Global Markets, Industry Note, FLASH - Senate Just Passed Class Action Bill - Positive for Tobacco (Feb. 10, 2005)).
58. CAFA arrives at a time of deep mistrust of mass litigators, which can be seen (as both cause and effect) in the proliferation of indictments, disciplinary actions, and civil lawsuits against mass plaintiffs' lawyers. The nation's leading securities class action firm, Milberg Weiss, was indicted along with several of its partners and former partners on charges that it made illegal payments to class representatives. See Peter Elkind, The Law Firm of Hubris, Hypocrisy & Greed, FORTUNE, Nov. 13, 2006, at 155;
59. Koppel, supra note 10. The Milberg Weiss indictments are hardly the only proceedings against mass litigators in the last couple of years. Florida plaintiffs' lawyer Louis Robles was indicted in 2006 on federal mail fraud charges relating to the misappropriation of $13.5 million in settlement funds belonging to his asbestos clients. Press Release, U.S. Dep't of Justice, Miami Attorney Indicted for Misappropriating at Least $13.5 Million in Client Settlement Money (May 23, 2006), available at http://miami.fbi.gov/dojpressrel/pressre106/mm052306.htm;
60. see also Jordana Mishory, Asbestos Clients of Lawyer Who Stole from Them Told They Can't Sue To Collect $13.5 Million from Florida Bar, BROWARD DAILY BUS. REV. (Fla.), Jan. 4, 2007, at 1. New York plaintiffs' firm Napoli Bern Ripka, which represented thousands of fen-phen plaintiffs, faces claims that it negotiated a mass settlement that provided the firm with more than its legitimate share of the funds.
61. Anthony Lin, Trial Ordered over Firm's Role in "Fen-Phen" Pact, N.Y. L.J., Mar. 28, 2007, at 1. Three Kentucky mass tort attorneys were accused in 2006 of misappropriating more than half of a $200 million settlement fund.
62. See Fen-Phen Lawyers Told To Disgorge $20 Million, NAT'L L.J., Mar. 20, 2006, at 18;
63. Three Fen-Phen Lawyers Indicted on Fraud Charges, NAT'L L.J., June 18, 2007, at 3;
64. Three Ky. Fen-Phen Attorneys Are Suspended, NAT'L L.J., Aug. 28, 2006, at 3.
65. 141 CONG. REC. 35,238 (1995) (statement of Sen. D'Amato).
66. Id. at 35,240. Similarly, speaking in favor of overriding President Clinton's veto of the PSLRA, then-Representative Charles Schumer described the need to end "frivolous securities suits": Under the current system lawyers often bring lawsuits immediately after a drop in a company's stock price, without any further research into the real cause of the price decline. As a result the suits often have no substantive merit, but they have the effect of presenting the company with the unhappy choice between a costly, lengthy discovery process and an exorbitant, unjustified settlement. And what's worse, an inordinate share of the ultimate settlement often ends up in the pockets of the lawyers who brought the case, rather than in the bank accounts of the shareholders on whose behalf the lawyers ostensibly filed in the first place.
67. CONG. REC. E2437 (daily ed. Dec. 21, 1995) (statement of Rep. Schumer). Representative Schumer explained that his goal was not to eliminate class actions, but rather to correct certain abuses: "This bill goes a long way toward correcting these abuses without curtailing the essential rights of shareholders to sue corporations and insiders when there is legitimate evidence of fraud and deception." Id.
68. See, e.g., Timothy L. O'Brien, Behind the Breakup of the Kings of Tort, N.Y. TIMES, July 11, 2004, § 3, at 1 (calling the PSLRA "a measure aimed squarely at Milberg, Weiss," and reporting that "in the end, the act gave Milberg, Weiss - which could afford lengthy investigations - an advantage over smaller competitors and encouraged the firm to hunt bigger game").
69. But see Stephen J. Choi & Robert B. Thompson, Securities Litigation and Its Lawyers: Changes During the First Decade After the PSLRA, 106 COLUM. L. REV. 1489, 1517 (2006) (showing that by one measure, market share concentration may have decreased post-PSLRA, and that although Milberg Weiss held a dominant market both before and after the PSLRA, the cumulative share of the next four firms dropped in the post-PSLRA period).
70. Tamara Loomis, Milberg Weiss Stronger than Ever Despite Reform Act, THE LEGAL INTELLIGENCER, Apr. 25, 2003, at 4.
71. Id.
72. LAURA E. SIMMONS & ELLEN M. RYAN, CORNERSTONE RESEARCH, POST-REFORM ACT SECURITIES LAWSUITS: SETTLEMENTS REPORTED THROUGH DECEMBER 2003, at 14 (2004).
73. Tamara Loomis, In Spite of Reform Law, Milberg Weiss Emerges as Winner in Securities Suits, N.Y. L.J., Apr. 22, 2003, at 1.
74. Id.
75. Id.; see also id. ("Few firms have the financial resources to sink millions of dollars into developing a complaint, and even fewer are willing to take the risk of losing it all on a motion to dismiss. For the cases diat survive, the chances that a firm not appointed lead counsel will make any real money are slim. As a result, the small practitioners for the most part have given up on securities work, [one plaintiffs'] lawyer said.").
76. William S. Lerach, "The Private Securities Litigation Reform Act of 1995-27 Months Later": Securities Class Action Litigation Under the Private Securities Litigation Reform Act's Brave New World, 76 WASH. U. L.Q. 597, 612-13 (1998).
77. See COMM. ON RULES OF PRACTICE AND PROCEDURE, JUDICIAL CONFERENCE OF THE U.S. (JCUS), PROPOSED AMENDMENTS TO THE FEDERAL RULES OF CIVIL PROCEDURE (Aug. 1996);
78. Comm. on Rules of Practice and Procedure, JCUS, Proposed Amendments to Rules of Civil Procedure (Feb. 1995 & Nov. 1995 Drafts), reprinted in Edward H. Cooper, Rule 23: Challenges to the Rulemaking Process, 71 N.Y.U. L. REV. 13 app. at 53-73 (1996).
79. FED. R. CIV. P. 23(f).
80. FED. R. CIV. P. 23(e).
81. FED. R. CIV. P. 23(g).
82. FED. R. CIV. P. 23(h).
83. 521 U.S. 591 (1997).
84. 527 U.S. 815 (1999).
85. See, e.g., id. at 855 (noting that the settling nonclass "inventory" clients of class counsel "appeared to have obtained better terms than the class members"); Amchem, 521 U.S. at 593 (expressing concern that a lawyer negotiating a settlement-only class action lacks settlement leverage).
86. See John C. Coffee, Jr., Class Wars: The Dilemma of the Mass Tort Class Action, 95 COLUM. L. REV. 1343, 1370-73 (1995).
87. See Smith v. Sprint Commc'ns Co., 387 F.3d 612, 614-15 (7th Cir. 2004) (rejecting a settlement class action in part because class counsel, when negotiating the settlement, lacked the leverage of a certified litigation class action); T.R. Goldman, Shattering Reform Myths, LEGAL TIMES, Feb. 7, 2005, at 1 ("With cases forced into federal court, there will be fewer chances for companies to work the so-called reverse auction, which allows defendants to play one set of plaintiffs off another in order to achieve the lowest settlement price.").
88. See Howard M. Erichson, Beyond the Class Action: Lawyer Loyalty and Client Autonomy in Non-Class Collective Representation, 2003 U. CHI. LEGAL F. 519, 530-43 [hereinafter Erichson, Beyond the Class Action] (describing nonclass mass litigation that functions like class actions);
89. Howard M. Erichson, Informal Aggregation: Procedural and Ethical Implications of Coordination Among Counsel in Related Lawsuits, 50 DUKE L.J. 381, 386-417 (2000) (describing lawyer coordination in related lawsuits as a substitute for formal aggregation);
90. Howard M. Erichson, Mississippi Class Actions and the Inevitability of Mass Aggregate Litigation, 24 MISS. C. L. REV. 285, 287-96 (2005) [hereinafter Erichson, Mississippi Class Actions] (discussing the extent of mass aggregate litigation in Mississippi despite the absence of a class action rule). Francis McGovem expects unintended consequences from litigation reform in general and class action reform in particular: Although the authors of reform have the advantage of defining the rules of the game, there is the related disadvantage of being a stationary target. The range of options to circumvent stable rules is continuously subjected to the inventiveness of counsel. Given sufficient financial incentives or a narrowing range of alternative litigation opportunities, the marketplace of litigation has been fertile ground for unpredictable outcomes.
91. Francis E. McGovern, Common Themes and Unintended Consequences in Class Action Reform, 83 WASH. U. L.Q. 1107, 1112 (2005).
92. Thanks to Charles Sullivan for the metaphor.
93. THOMAS E. WILLGING & EMERY G. LEE III, FED. JUDICIAL CTR., THE IMPACT OF THE CLASS ACTION FAIRNESS ACT OF 2005 ON THE FEDERAL COURTS: THIRD INTERIM REPORT TO THE JUDICIAL CONFERENCE ADVISORY COMMITTEE ON CIVIL RULES 21 (2007) [hereinafter FJC THIRD INTERIM REPORT].
94. Id. at 2.
95. Data from Summary Table 1, E-mail from Thomas Willging to Howard Erichson (Aug. 1, 2007) (on file with author).
96. Emery G. Lee III & Thomas E. Willging, The Impact of the Class Action Fairness Act on the Federal Courts: An Empirical Analysis of Filings and Removals, 156 U. PA. L. REV. 1723, 1750 (2008).
97. Id at 1751; see also FJC THIRD INTERIM REPORT, supra note 71, at 14 (reporting an increase from 27.0 cases per month pre-CAFA to 53.4 cases per month post-CAFA).
98. See Lee & Willging, supra note 74, at 1748 (noting that accurate information on state court class action activity is needed to confirm a CAFA effect, but that "information on class action activity in the state courts of this kind is not available at this time").
99. The study is being conducted by the Office of Court Research of California's Administrative Office of Courts, in conjunction with Professor Richard Marcus of Hastings College of the Law. The most recent FJC progress report on CAFA mentions the FJCs collaboration with the California researchers and presents preliminary data on the relationship between state and federal class actions in California. FED. JUDICIAL CTR., PROGRESS REPORT TO THE ADVISORY COMMITTEE ON CIVIL RULES ON THE IMPACT OF CAFA ON THE FEDERAL COURTS 3-5 (2007) [hereinafter FJC PROGRESS REPORT].
100. Id. 4-5 & fig. 1. The [Office of Court Research] found a decrease in California class action activity between 2004 and 2005 in those seven superior courts; however, the number of class action[s] found in 2005 still represented an increase over 2002 and 2003. By comparison, the FJC found a marked increase in class action activity in 2005 in the four California federal district courts - especially in the Central District of California, which includes Los Angeles County. Id. at 4; see also Lee & Willging, supra note 74, at 1748 n.84 (reporting the same data).
101. The growth of total class action filings in California does not necessarily indicate a nationwide growth in the total number of class actions. Because Ninth Circuit law is relatively favorable to class certification, forum selection by class action plaintiffs' attorneys may give the California federal district courts a disproportionate share of post-CAFA federal court class actions. On post-CAFA forum selection, see infra text accompanying notes 92-105.
102. Indeed, when President Bush signed CAFA, he described his recent visit to Madison County and introduced a class member who received a coupon settlement from a Madison County class action. Remarks on Signing the Class Action Fairness Act of 2005, supra note 2.
103. Ann Knef, Class Action Fairness Act: Is It Working?, MADISON-ST. CLAIR REC. (Ill.), Mar. 27, 2006, at 1;
104. Shruti Date Singh, Madison County Goes Quiet: Class Actions Halt After Federal Law, III. Courts Curb Forum Shopping, CRAIN'S CHI. BUS., Sept. 11, 2006, at 1.
105. Ann Knef, ATRA's Excerpts: Callis Credited for Madison County's Improvements, MADISON-ST. CLAIR REC. (Ill.), Dec. 24, 2007, at 2 (citing AM. TORT REFORM ASS'N, JUDICIAL HELLHOLES 2007, available at http://www.atra.org/reports/hellholes/report.pdf [hereinafter ATRA 2007 REPORT]). The 2007 report's numbers differ slighdy from those cited in earlier articles; it states that Madison County had 106 class actions in 2003, 87 in 2004, and 56 in 2005. ATRA 2007 REPORT, supra, at 20.
106. See Steve Gonzalez, Madison, St. Clair Drop Down in "Hellhole" Ranking, MADISON-ST. CLAIR REC. (Ill.), Dec. 18, 2006, at 1 (describing new rules implemented in Madison County); ATRA 2007 REPORT, supra note 82, at 19-20 (crediting largely the reform efforts of Chief Judge Ann Callis).
107. Although Kevin Clermont and Theodore Eisenberg's findings on CAFA judicial activity may appear to contradict this, there is no inconsistency. Clermont and Eisenberg studied all reported cases on CAFA during its first two and a half years. They found that ninety-one percent of the district court CAFA cases had been removed from state court rather than filed originally in federal court. Kevin M. Clermont & Theodore Eisenberg, CAFA Judicata: A Tale of Waste and Politics, 156 U. PA. L. REV. 1553, 1562 (2008). Because the study looks only at reported opinions that mention CAFA, however, it reflects a specific subset of the universe of federal court class actions, and is particularly unlikely to reflect the overall rate of removals and original filings, as Clermont and Eisenberg acknowledge: Probably the difference shows merely that among CAFA class actions, removed cases are the ones generating pitched battles and hence published opinions, and especially opinions that expressly mention the Class Action Fairness Act or CAFA. The difference between the two studies thus may reflect the danger of relying only on published cases to get a picture of what is really happening on the ground. Id. at 1563.
108. FJC THIRD INTERIM REPORT, supra note 71, at 16-17.
109. Lee & Willging, supra note 74, at 1752 (reporting that pre-CAFA diversity removals and original filings averaged 16.6 and 10.8 per month respectively, and post-CAFA diversity removals and original filings averaged 23.7 and 31.5 per month respectively).
110. FJC THIRD INTERIM REPORT, supra note 71, at 16.
111. Bob Yates, Class Action Fairness Act; More than a Year Later, CHI. LAW., Dec. 2006, at 54, 55 (quoting Michael Pope).
112. See FJC THIRD INTERIM REPORT, supra note 71, at 17 (noting that by filing class actions in federal court as original proceedings, "plaintiff attorneys retain a choice of forum at least to the extent that, in a given case, jurisdiction and venue rules allow filing in more than one federal forum").
113. See 28 U.S.C. § 1441(a) (2000) (permitting removal "to the district court of the United States for the district and division embracing the place where such action is pending").
114. The best-known list of plaintiff-friendly jurisdictions is the American Tort Reform Association's (ATRA) controversial annual list of "Judicial Hellholes." ATRA's final pre-CAFA report featured the following top five "hellholes": Madison County, Illinois; St. Clair County, Illinois; Hampton County, South Carolina; the State of West Virginia; and Jefferson County (Beaumont), Texas. See ATRA 2004 REPORT, supra note 20, at 14-25. The previous year, ATRA's top five were Madison County, Illinois; Jefferson County, Texas; the 22nd Judicial Circuit (Copiah, Claiborne, and Jefferson Counties), Mississippi; Hidalgo County, Texas; and Orleans Parish, Louisiana. See AM. TORT REFORM ASS'N, BRINGING JUSTICE TO JUDICIAL HELLHOLES 2003, at 3-8 (2003) [hereinafter ATRA 2003 REPORT], available at http://www.atra.org/reports/hellholes/2003/reportpdf. Madison County topped ATRA's list in 2002, 2003, and 2004, before dropping to fourth in 2005, sixth in 2006, and finally dropping off the list in 2007. See ATRA 2007 REPORT, supra note 82, at 19-20. The U.S. Chamber of Commerce similarly identifies court systems that its members consider unfriendly to businesses; in 2004, its top four business-unfriendly state court systems were Mississippi, West Virginia, Alabama, and Louisiana.
115. See Martin Kasindorf, Robin Hood Is Alive in Court, Say Those Seeking Lawsuit Limits, USA TODAY, Mar. 8, 2004, at 1A.
116. For a counterperspective, see CONGRESS WATCH, PUB. CITIZEN, CLASS ACTION "JUDICIAL HELLHOLES": EMPIRICAL EVIDENCE IS LACKING (2005), available at http://www.citizen.org/documents/OutlierReportpdf.
117. 92 For an analysis of various factors that affect class action forum selection, see Thomas E. Willging & Shannon R. Wheatman, Attorney Choice of Forum in Class Action Litigation: What Difference Does It Make?, 81 NOTRE DAME L. REV. 591 (2006).
118. One report quotes defense lawyer Stanley Parzen on federal forum shopping: "In a securities context for instance, in the 4th and 5th Circuits if you have individual representations and the plaintiff has to show reliance, that individual issue is very likely going to doom a class action in those circuits without any doubt whatsoever," he says. "In the 2nd Circuit, it's not quite as clear. You might be able to do it anyway." Jarrett Banks, Plaintiffs Find Loopholes in Class Action Fairness Act, CORP. LEGAL TIMES, June 2005, available at http://www.insidecounsel.com/section/litigation/135.
119. Coffee & Paulovic, supra note 16, at S-819; see also Yates, supra note 88, at 56 ("'But even in the federal court system,' Michael Pope said, 'different circuits are more class action-friendly than others. The Seventh Circuit applies a pretty careful standard. They're less inclined to certify than other circuits.'").
120. See e.g., Klay v. Humana, Inc., 382 F.3d 1241, 1246 (11th Cir. 2004) (certifying a class action against HMOs).
121. Looking at pre-CAFA class action data, John Coffee and Stefan Paulovic observed that CAFA might alter forum selections: Overall, the inter-Circuit pattern seems highly stable - but again CAFA could disrupt this stability. Recognizing that their class actions could be removed from state courts under CAFA, plaintiff's attorneys may instead file class actions initially in "friendly" jurisdictions, such as the Second and Ninth, rather than see them removed to "unfriendly" federal courts in the Fourth and Fifth Circuits. Coffee & Paulovic, supra note 16, at S-789-80.
122. Figure 5 in the FJC report shows the disparate effect of CAFA in the various federal courts of appeals, with by far the biggest increase in the Ninth Circuit. FJC THIRD INTERIM REPORT, supra note 71, at 18 fig.5.
123. See id. at 18 (reporting that the number of diversity class actions in the district courts of the Nindi Circuit "increased almost six-fold after CAFA, accounting for 30% of the [nationwide] increase").
124. Id. at 18 fig.5; see also Lee & Willging, supra note 74, at 1759-60. It is more difficult to explain the significant growth of class actions within the Fifth Circuit, as Fifth Circuit case law is not particularly helpful to class action plaintiffs. The Fifth Circuit data might be attributable to Hurricane Katrina insurance litigation. See infra note 101.
125. FJC THIRD INTERIM REPORT, supra note
126. Lee & Willging, supra note 74, at 1760 fig. 7. Lee and Willging point out that the FJC data do not perfectly match expectations of forum shopping based on circuit-by-circuit differences in class certification. Most notably, the Fifth Circuit experienced not only a significant post-CAFA increase in class actions, but more surprisingly a greater increase in original class action filings than in removals. Id. at 1761. Lee and Willging suggest, as one possible explanation, that during the relevant time period the courts within the Fifth Circuit saw many cases relating to Hurricane Katrina insurance coverage. Id. at 1761-62.
127. FJC THIRD INTERIM REPORT, supra note 71, at 19.
128. Id. at 19-20 & fig.6.
129. The FJC report points out that of the ten districts with the most diversity class actions, nine saw at least a doubling of their diversity class action filings after CAFA; the one exception was the Northern District of Illinois, which increased only by one case during the relevant period. Id. at 20. The Northern District of Illinois falls within the class-unfriendly Seventh Circuit, whereas the biggest growth districts were in the Ninth, Third, and Second Circuits.
130. Ted Frank of the American Enterprise Institute, who favored CAFA and disfavors most class actions, makes the following point about both districts and circuits: "Federal courts do not create quite the same opportunities for forum-shopping that the magnet jurisdictions of old did, but some opportunities are there." Ted Frank, The Class Action Fairness Act Two Years Later, LIABILITY OUTLOOK, Mar. 2007, at 2, available at http://www.aei.org/docLib/20070327_Liability.pdf. He points to the Eastern District of New York as an example, stating, "Judge Weinstein's courtroom shows that there are still some magnet jurisdictions out there, and that those magnets will grow even stronger if the Second Circuit does not take a stand on defending federal class-certification standards." Id. He points, as well, to "the beginning of a magnet jurisdiction in the Ninth Circuit." Id. at 3.
131. FJC THIRD INTERIM REPORT, supra note 71, at 3-15. Figure 1 from the FJC report vividly illustrates the increase in labor, contract, and certain other types of class actions in early 2005 - CAFA took effect on February 18, 2005 - while other types of class action filings declined or held steady. Id. at 4 fig. 1. Reporting a "marked increase in the number of diversity class actions in federal court," the report notes that "[t]hese additional cases so far have primarily been contract and common-law fraud cases, plus a small number of property damage class actions." Id. at 21.
132. See, e.g., Ortiz v. Fibreboard Corp., 527 U.S. 815 (1999); Amchem Prods., Inc. v. Windsor, 521 U.S. 591 (1997); In re Bridgestone/ Firestone, Inc., Tires Prods. Liab. Litig., 333 F.3d 763 (7th Cir. 2003); Castano v. Am. Tobacco Co., 84 F.3d 734 (5th Cir. 1996); In re Am. Med. Sys., Inc., 75 F.3d 1069 (6th Cir. 1996); In re Gen. Motors Corp. Pick-Up Truck Fuel Tank Prods. Liab. Litig., 55 F.3d 768 (3d Cir. 1995); In re Rhone-Poulenc Rorer Inc., 51 F.3d 1293 (7th Cir. 1995); Blain v. SmithKline Beecham Corp., 240 F.R.D. 179 (E.D. Pa. 2007); In re Vioxx Prods. Liab. Litig., 239 F.R.D. 450 (E.D. La. 2006); Sanders v. Johnson & Johnson, Inc., No. 03-2663, 2006 WL 1541033 (D.N.J. June 2, 2006); Sweet v. Pfizer, 232 F.R.D. 360 (C.D. Cal. 2005); In re Prempro Prods. Liab. Litig., 230 F.R.D. 555 (E.D. Ark. 2005); Harris v. Purdue Pharma, L.P., 218 F.R.D. 590 (S.D. Ohio 2003); In re Baycol Prods. Litig., 218 F.R.D. 197 (D. Minn. 2003); Benner v. Becton Dickinson & Co., 214 F.R.D. 157 (S.D.N.Y. 2003); In re Paxil Litig., 212 F.R.D. 539 (C.D. Cal. 2003); In re Rezulin Prods. Liab. Litig., 210 F.R.D. 61 (S.D.N.Y. 2002); In re Phenylpropanolamine (PPA) Prods. Liab. Litig., 208 F.R.D. 625 (W.D. Wash. 2002); In re Propulsid Prods. Liab. Litig., 208 F.R.D. 133 (E.D. La. 2002).
133. See Mark C. Weber, Forum Allocation in Toxic Tort Cases: Lessons from the Tobacco Litigation and Other Recent Developments, 26 WM. & MARY ENVTL. L. & POL'Y REV. 93, 96-97 (2001);
134. see also, e.g., Settlement Agreement, Hoorman v. SmithKline Beecham Corp., No. 04-L-715 (Ill. Cir. Ct. Oct. 6, 2006), available at http://www.paxilpediatricsettlement.com/pdfs/SettlementAgreement.pdf (approving settlement class action in Paxil litigation).
135. See FJC THIRD INTERIM REPORT, supra note 71, at 7 (reporting that federal court personal injury class actions "reached their lowest level in the study period in January-June 2006 - forty-one cases, down from sixty-six cases in January-June 2005," and down from a high of sixty-eight in January-June 2003); Lee & Willging, supra note 74, at 1756 (reporting that personal injury tort class actions in federal court averaged 7.1 per month both before and after CAFA's enactment). Lee and Willging call the personal injury data "somewhat unexpected" and suggest that the absence of any increase in personal injury tort class actions in federal court "may signal some frustration of congressional intent." Id.
136. See FJC THIRD INTERIM REPORT, supra note 71, at 7-8 (reporting an increase in diversity jurisdiction property damage class actions from a monthly average of 1.7 pre-CAFA to 4.2 post-CAFA).
137. See id. at 5-6 (reporting an increase in contract class actions based on diversity of citizenship); see also Clermont & Eisenberg, supra note 84, at 1562 (reporting that most of the published judicial decisions on CAFA have involved contract and insurance cases); Lee & Willging, supra note 74, at 1755 ("[M]uch of the increase in diversity filings and removals has been driven by a large increase in the number of state-law Contracts actions filed in or removed to the federal courts.").
138. See FJC PROGRESS REPORT, supra note 77, at 7 (reporting that diversity jurisdiction "other fraud" class actions numbered twenty-four in 2002, twenty-six in 2003, thirty in 2004, and eighty-eight in 2005 (of which eighty-two were filed or removed after CAFA took effect)); see also FJC THIRD INTERIM REPORT, supra note 71, at 10 (noting that diversity jurisdiction "other fraud" class actions increased from a monthly average of 2.3 pre-CAFA to 8.4 post-CAFA, while the average number of federal question "other fraud" class actions remained stable).
139. See FJC THIRD INTERIM REPORT, supra note 71, at 12 & fig.2e (showing a decline from 241 securities class actions in July-December 2001 to 110 in January-June 2006). The pace of securities class actions picked up again in 2007, according to a study by the Stanford Law School Securities Class Action Clearinghouse and Cornerstone Research. See CORNERSTONE RESEARCH, 2007: A YEAR IN REVIEW 2 (2008), available at http://securities. stanford.edu/clearinghouse_research/2007_YIR/20080103-01.pdf (finding a forty-three percent increase in securities fraud class actions from 2006 to 2007).
140. See, e.g., Dow Jones Indexes 2000-2009 Decade Chart, http://djindexes.com/mdsidx/downloads/2000_2009.pdf.
141. See Coffee & Paulovic, supra note 16 at S-787 (noting "more rigorous certification criteria for securities class actions, which once were simple," as a major factor in the decline of securities class actions in 2005 and 2006) (citing Regents of the Univ. of Cal. v. Credit Suisse First Boston (USA), Inc., 482 F.3d 372 (5th Cir. 2007); In re Initial Pub. Offerings Sec. Litig., 471 F.3d 24 (2d Cir. 2006); In re PolyMedica Corp. Sec. Litig., 432 F.3d 1 (1st Cir. 2005)).
142. See Elkind, supra note 48 (describing the downfall of Milberg Weiss).
143. FJC THIRD INTERIM REPORT, supra note 71, at 11. The increase is due to FLSA, as the other category of labor class actions - ERISA actions - remained steady. Id.
144. The FJC's earlier research coded these cases in the catch-all "Other Statutory Actions" category, but its November 2007 progress report shows the results of reclassifying the federal consumer cases. FJC PROGRESS REPORT, supra note 77, at 5-6. The Third Interim Report's Figure 1, supra note 71, at 4 fig.1, shows the growth in Other Statutory Actions in 2005; the new information in the November 2007 progress report helps to explain that growth.
145. See 28 U.S.C. § 1331 (2000) (granting original federal jurisdiction over claims arising under federal law).
146. FJC THIRD INTERIM REPORT, supra note 71, at 11. Because the increase in labor class actions constituted such a significant portion of the cases, the report repeatedly stressed the distinction between diversity cases, which could be attributed to CAFA, and federal question cases, which could not. See id. at 2 ("Much of that increase was in federal question cases, especially labor class actions, and thus not attributable to the effects of CAFA"); id. at 4 ("[A] great deal of that increase in class action activity was in labor cases, and thus was not attributable to CAFA."). More recently, however, the FJC report's authors have acknowledged that CAFA might have affected federal question filings. See Lee & Willging, supra note 74, at 1749 ("It is possible, however, that CAFA may increase the number of federal question original proceedings indirectly, at the margins.").
147. See Lee & Willging, supra note 74, at 1749.
148. See 28 U.S.C. § 1367(a) (2000) (limiting supplemental jurisdiction to claims that form part of the same controversy); id. § 1367(c) (permitting federal courts to decline to exercise supplemental jurisdiction over state law claims).
149. See, e.g., In re Farmers Ins. Exch. Claims Representatives' Overtime Pay Litig., No. MDL 1439, 2003 WL 23669376, at *1 (D. Or. May 19, 2003) (outlining plaintiffs' complaint under FLSA and state law asserting that employer unlawfully refused to grant overtime pay); Trotter v. Perdue Farms, Inc., No. 99-0893, 2001 WL 1002448, at *1 (D. Del. Aug. 16, 2001) (describing plaintiffs' claims under FLSA, ERISA, and state law, asserting that employer failed to compensate employees for time spent complying with OSHA requirements); Ansoumana v. Gristede's Operating Corp., 201 F.R.D. 81, 83-84 (S.D.N.Y. 2001) (detailing plaintiffs' claims under FLSA and state law asserting that employer paid them less than minimum wage).
150. See De Asencio v. Tyson Foods, Inc., 342 F.3d 301, 311-12 (3d Cir. 2003) (reversing decision to grant supplemental jurisdiction where state law wage-and-hour claim was raised late and presented complex issues unnecessary for the FLSA claim). State law wage-and-hour claims ordinarily are pursued as opt-out class actions, whereas the FLSA establishes an opt-in procedure. 29 U.S.C. § 216(b) (2000).
151. Whether because of changes in employment practices, new federal regulations, or other reasons, FLSA class actions nearly tripled from 2001 to 2004. See Amy I. Stickel, FLSA Suits Take Flight, COUNSEL TO COUNSEL, Mar. 2005, at 16, 17 (reporting, based on data compiled by LexisNexis CourtLink, that the number of FLSA class actions filed in federal district courts rose from 397 in 2001 to 1076 in 2004);
152. see also Samuel D. Walker & Jennifer E. Chung, Trends in Workplace Litigation: The Rising Popularity of FLSA Class Actions 2-3 (Aug. 9, 1999) (unpublished conference paper), available at http://www.bna.com/ bnabooks/ababna/annual/99/annual29.pdf (arguing that large-scale FLSA suits in the year prior to the article's publication demonstrated that such claims would continue to gain popularity).
153. See Stickel, supra note 125, at 17 ("Several Florida lawyers and firms account for the lion's share of [FLSA] suits, as some of those attorneys have apparently started their own cottage industry in this area of the law."). Nearly half of the FLSA class actions filed in 2004 were filed in the Southern District of Florida. Id. One firm, the Shavitz Law Group, represented the named plaintiff in 227 FLSA class actions in 2004, accounting for over forty percent of the FLSA class actions in the district and twenty-one percent of the FLSA class actions filed in the United States. Id. at 17-18. The Shavitz firm devotes its practice to wage-and-hour claims. See Shavitz Law Group, About Us, http://www.shavitzlaw.com/about_us.html (last visited Apr. 15, 2008) ("Founded in December, 1999, the Shavitz Law Group is . . . dedicated to representing employees, both current and former, who have disputes regarding unpaid wages. The claims litigated by the Shavitz Law Group pertain to violations of the Fair Labor Standards Act which is the law that regulates the payment of overtime wages for hours worked in excess of forty within a work week.");
154. see also Jessica M. Walker, Are FLSA Suits Too-Lucrative Labors for Plaintiffs Attorneys?, DAILY BUS. REV. (Fla.), Dec. 16, 2005, available at http://www.law.com/jsp/PubArticle. jsp?id=1134641114326 (discussing a legal battle between Shavitz and defense counsel over legal fees).
155. The prominence of the Shavitz firm and the Southern District of Florida in FLSA class action litigation explains an otherwise surprising difference between the FJC's Second Interim Report and Third Interim Report on CAFA. In contrast to the Third Interim Report, in the Second Interim Report the FJC did not observe a significant growth in labor class actions: "Labor cases, which consist primarily of federal Fair Labor Standards Act (FLSA) and Employment Retirement Income Security Act (ERISA) cases, increased somewhat after CAFA went into effect but not to a statistically significant degree." THOMAS E. WILLGING & EMERY G. LEE III, FED. JUDICIAL CTR., THE IMPACT OF THE CLASS ACTION FAIRNESS ACT OF 2005: SECOND INTERIM REPORT TO THE JUDICIAL CONFERENCE ADVISORY COMMITTEE ON CIVIL RULES 8 (2006) [hereinafter FJC SECOND INTERIM REPORT]. The Second Interim Report included data from the eighty-five district courts that used the Case Management/Electronic Case Filing ("CM/ECF") system and had created electronic docketing records for cases filed as of July 1, 2001. Id. at 1. The Southern District of Florida subsequently installed the CM/ECF system, enabling the FJC to include it in the study. See FJC THIRD INTERIM REPORT, supra note 71, at 1 ("This report includes data for the entire five-year study period from three district courts not included in the previous report (the Southern District of California, the Southern District of Florida, and the District of New Mexico); the CM/ECF system was recently installed in these districts, making their inclusion in the study possible.").
156. Federal consumer class actions in federal court increased by ten percent in 2003, by eleven percent in 2004, and by seventeen percent in 2005. FJC PROGRESS REPORT, supra note 77, at 6.
157. The FJC expects that the next phase of its class actions study will shed some light on this. See id. at 7 ("[W]hen Phase II of the study is completed, we will be able to determine whether some of this increase was caused by more consumer cases being brought as federal question cases because of CAFA.").
158. Id. at 6-7. But see Lee & Willging, supra note 74, at 1758 ("Both Labor and Consumer Protection/Fraud class actions reached their highest observed level in 2005, the year in which CAFA became law. But that, in itself, is not evidence of a CAFA effect.").
159. Deborah Hensler made this observation a year before CAFA was enacted, as quoted in a legal news article: "'The legislation will empower the larger, more nationally oriented firms' at the expense of smaller firms practicing in state courts. She said she sees a trend in which large, well-financed plaintiffs' firms will match the deep pockets and experience of their counterparts." Michael Bobelian, Congress Eyes Major Class Action Reforms, N.J. L.J., Jan. 12, 2004, at 9.
160. See id. ("'My practice, in a perverse way, will benefit,' said Weiss, whose firm has extensive experience in federal courts and is in a strong financial position." (quoting class action lawyer Melvyn Weiss)).
161. An FJC study of class action forum selection found that the tendency to file in state or federal court varies by lawyer: Attorneys were asked about the percentage of their civil cases that they had filed in federal court in the past five years. Responses indicated that the probability of filing in state court generally varies in the same direction as the attorneys' recent filing activity. Attorneys filing class actions in state court reported filing 30% of all their civil litigation in federal court in the past five years. Attorneys filing class actions in federal court reported filing 46% of their civil litigation in federal court.
162. Willging & Wheatman, supra note 92, at 614; cf. Herbert M. Kritzer, From Litigators of Ordinary Cases to Litigators of Extraordinary Cases: Stratification of the Plaintiffs' Bar in the Twenty-First Century, 51 DEPAUL L. REV. 219, 230 (2001) (describing stratification within the plaintiffs' bar and changes "at the top end of the spectrum").
163. Another leading filer of Madison County class actions before CAFA was the six-lawyer firm of Freed & Weiss. See McCann, supra note 3, at 8 ("To proponents of class-action reform, Weiss is the enemy, an attorney who they say enriches himself and hurts the business community while his clients receive coupons or relatively small cash awards. Weiss also is a leading class-action attorney in downstate Madison County, which national business groups hold up as a poster county for 'jackpot justice' and the abuse of class-action lawsuits."). Freed & Weiss's sole office is in Chicago. In contrast to other big-city office locations such as Los Angeles, San Francisco, New York, and Philadelphia, the city of Chicago - located in the class-unfriendly Seventh Circuit - holds less advantage for post-CAFA class action specialists. The advantage of an Illinois office had always depended on the ability to pursue class actions in state court, whether in Cook County or in southern Illinois; nearly all of the successful class actions listed on the Freed & Weiss website "Results" page were filed in Madison and St. Clair counties. See Freed & Weiss, LLC - Class Actions, http://www.freedweiss.com/results.htm (last visited Apr. 15, 2008).
164. See UNIF. TRANSFER OF LITIG. ACT § 201, 14 U.L.A. 677 (1991) (proposing a uniform state statute to allow consolidation of actions pending in multiple state courts); see also Edward H. Cooper, Interstate Consolidation: A Comparison of the ALI Project with the Uniform Transfer of Litigation Act, 54 LA. L. REV. 897, 905-06 (1994) (comparing potential approaches to interstate consolidation);
165. Mark C. Weber, Complex Litigation and the State Courts: Constitutional and Practical Advantages of the State Forum over the Federal Forum in Mass Tort Cases, 21 HASTINGS CONST. L.Q. 215, 268 (1994) (discussing the possibility of states adopting the Uniform Transfer of Litigation Act).
166. 28 U.S.C. § 1407 (2000).
167. 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. (2008) 1823, 1864 ("The conviction that animated most of CAFA's supporters was that the federal courts were much less likely to certify suits as class actions man were state courts and that denials of certification would, one way or another, quickly and abruptly end many, if not most, of them.").
168. See Elizabeth Chamblee Burch, CAFA's Impact on Litigation as a Public Good, 29 CARDOZO L. REV. (forthcoming 2008) (manuscript at 13-15, on file with author) (arguing that by applying federal jurisdiction but not federal substantive law or choice of law to national market cases, CAFA renders class certification unlikely);
169. Class Action Litigation: Hearing Before the S. Comm. on the Judiciary, 107th Cong. 12-13 (2002) (statement of Thomas J. Henderson, Chief Counsel, Lawyers' Committee for Civil Rights Under Law) (raising a concern that docket constriction in federal court would create pressure to deny class certification) (quoted in Lee & Willging, supra note 74, at 1742).
170. CAFA applies only to class actions commenced on or after February 18, 2005. The class certification decision often occurs well after commencement of an action.
171. FJC PROGRESS REPORT, supra note 77, at 1-3.
172. See supra Part III.A.
173. See supra Part III.B.
174. See Erichson, Beyond the Class Action, supra note 69, at 530-43 (exploring various forms of nonclass collective litigation and settlement, and their similarities to class actions); Erichson, Mississippi Class Actions, supra note 69, at 287-96 (showing the extent of mass aggregate litigation in Mississippi despite that state's lack of a class action rule).
175. See generally Erichson, Beyond the Class Action, supra note 69 (describing mass collective representation); Howard M. Erichson, A Typology of Aggregate Settlements, 80 NOTRE DAME L. REV. 1769 (2005) (describing collective negotiation and group settlements).
176. In non-class actions, courts generally lack authority to decide which lawyers may represent a mass of plaintiffs, how much compensation the lawyers receive, and whether a settlement is fair, whereas class actions trigger judicial supervision over all of these matters. See FED. R. CIV. P. 23(e) (requiring court approval of class action settlement);
177. FED. R. CIV. P. 23(g) (requiring judicial appointment of class counsel); FED. R. CIV. P. 23(h) (regulating judicial awards of class counsel fees);
178. see also FED. R. CIV. P. 23(a)(4) (requiring a finding of adequate representation as a prerequisite for class certification).
179. See generally Third Circuit Task Force Report on Selection of Class Counsel, 74 TEMPLE L. REV. 689 (2001), reprinted in 208 F.R.D. 340 (2002) (analyzing district court judges' policies toward selection of class counsel nationwide).
180. FED. R. CIV. P. 23(g).
181. See supra text accompanying notes 134-135.
182. Noteworthy recent examples include Judge Jack Weinstein in the Zyprexa litigation, In re Zyprexa Prods. Liab. Litig., No. MDL 1596 (E.D.N.Y.), and Judge Eldon Fallon in the Vioxx litigation, In re Vioxx Prods. Liab. Litig., No. MDL 1657 (E.D. La.).
183. CAFA § 2(a) (1), 28 U.S.C. § 1711 note (Supp. V 2005); see also id. § 2(b) (1) (stating that a purpose of the act is to "assure fair and prompt recoveries for class members with legitimate claims"); supra note 30 and accompanying text (quoting President Bush on the "valuable purpose" served by class actions).