November 20, 2012 Articles

Dealing with Competing Class Actions

Knowing the tools available for competing class actions will give defense counsel and the defendant the best opportunity to tailor a successful strategy.

By Michael R. Pennington and John E. Goodman

The problem of competing class actions presents a variety of challenges and options for the defendant. There is no one-size-fits-all response, but knowing the tools available will give defense counsel and the defendant the best opportunity to tailor a successful strategy to deal with a multiplicity of class litigation involving overlapping or repetitive claims.

A Race to Judgment
One option, of course, is to simply defend each action separately. In this scenario, the first action to reach judgment on the merits, whether by settlement or litigation, will generally be conclusive as to all class members despite any competing litigation that remains pending, by virtue of res judicata and claim preclusion principles and the Full Faith and Credit Clause of the United States Constitution. See, e.g., Matsushita Elec. Indus. Co., Ltd. v. Epstein, 516 U.S. 367 (1996); Marrese v. Am. Acad. of Orthopaedic Surgeons, 470 U.S. 373 (1985).

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