The ABA Section of Litigation’s Class Actions and Derivative Suits Committee published its first survey of class action law in each of the 50 states. Undoubtedly, this copious, 625-page volume provides extensive guidance from experienced litigators and will earn a place on the shelves of multijurisdictional class action practitioners.
The book’s editors expressly offer this volume as a propitious resource to aid “in-house and outside counsel” in navigating the otherwise treacherous ocean that is state class action law. Considering the long history of American class action jurisprudence, it is surprising that this volume was not compiled earlier. The editors professed hope is that attorneys faced with class action litigation will now better understand their state court options.
Rule 23 Comparisons Aid the Experienced
Class action cognoscenti will appreciate the book’s organization, allowing efficient review of cases on class certification requirements. In each chapter, Federal Rule of Civil Procedure 23 (Rule 23) is compared with each state’s procedural analog. With the exception of California, Mississippi, Nebraska, North Dakota, and Virginia, all states’ class action procedural rules are patterned after some version of the federal rule. Amplifications or elisions to state procedural rules relative to Rule 23 are delineated.
Next, cases interpreting each state’s rule analog are presented and briefly analyzed, including analyses of the required elements for class certification under Rules 23(a) and 23(b). Some chapters include additional discussion of state analogs to Rules 23(c) through 23(h).
Knowledge of key U.S. Supreme Court precedents that impact state class action law is particularly useful in the 45 states where procedural laws mirror Rule 23. In most of those states, per authority of American Pipe & Construction Co. v. Utah, 414 U.S. 538 (1974), the filing of a class action complaint tolls the statute of limitation for actual or putative class members of the proposed class. Analogously, in those states that embrace the reasoning of Eisen v. Carlisle & Jacquelin, 417 U.S. 154 (1974), trial courts are without authority to hear the merits of a case at the class certification stage. These and many other procedural niceties are presented in the relevant chapters.
Additionally, a “miscellaneous” section in many chapters includes state-specific comments or quirks. For instance, Washington’s class action law is silent on the form or content of a class; its high court interpreted that silence as permitting any “cohesive class” whose claims can be represented by a named plaintiff. In Wyoming, where the rules are “identical” to Rule 23, circuit courts have exclusive jurisdiction over class actions with claims of $7,000 or less; yet, Wisconsin’s highest court held that circuit courts cannot hear class actions. The functional result of the Wyoming ruling is that class actions brought there must have individual claims above $7,000 and can only be brought in federal courts within the state.
Other features in some chapters include limited commentary on cy pres, choice of law, and counterclaims, among other legal concepts. Uninitiated class action attorneys who face litigation in certain states will have to conduct nimble research to fully grasp unknown legal concepts when considering their litigation options. Familiarity with the elements of Rule 23 and its precedents will facilitate use of this book in most states since a vast majority of them have rules that mimic Rule 23.
The other uniform aspect in each chapter is found at its end. There, the letter of the relevant class action law is replicated in full, and practitioners may consult the provenance of each chapter’s legal narrative.
Where Future Editions May Benefit
This book succeeds in providing guidance to practitioners on class action law in each state. In that regard, the editors achieved their stated goal of producing a “tool” for in-house and outside counsel. Even in a book of this heft, a subject as complicated as class action understandably cannot receive full treatment. Therefore, this book will not answer every question you may have on state class actions.
Readers may need to expand their research for more complete treatment of preemption and removal. For example, the book’s preamble discusses the impact of the Class Action Fairness Act of 2005 to encourage removal of state cases that satisfy diversity jurisdictional thresholds. Otherwise, only a few chapters address removal.
The editors should be applauded for this inclusive and collaborative effort between members of the plaintiff and defense bar. This bodes well for future editions of class action surveys since practitioners will know they are getting the perspective of both sides of the bar. Until then, The Law of Class Action: Fifty-State Survey 2011–2012 provides a solid rudder in the vast procedural ocean that is state class action law.
Kelso L. Anderson is an contributing editor Litigation News.