A Model Plan to Resolve Federal Class Action Cases by Jury Trial

Abstract

These two decisions, Amchem and Ortiz, and the powerful critique pointing out the risk of collusion have clouded the prospects for future settlements in major class actions and cut short plans to amend the federal class action rule to encourage settlements. The procedural bar will likely diminish the number of class certifications for settlement by imposing heightened attention to certification requests. The substantive criticisms will likely block any future efforts to modify the Rule to facilitate certifications for settlement. Before these developments, settlement had been virtually the only process employed to resolve complex civil cases. Now the inevitable question is: How will the federal courts respond to the continuing tide of complex civil litigation commenced in district courts? One possibility is to turn away most of these claims at the threshold by refusing to certify class actions leaving plaintiffs to wait, likely in vain, for individual federal adjudication. This option would follow naturally from heightened attention to certification requirements and has been supported candidly by some critics. But the option is not attractive. A failure to certify can mean that thousands and sometimes millions of persons claiming a under established substantive law will be left with no real judicial remedy. Chief Justice John Marshall famously labeled the failure to furnish a remedy for the violation of a vested legal right a condemnation of our jurisprudence. The other possibility for avoiding the new procedural and substantive objections to settlement is to bring the claims to an adjudicated solution by trial. Traditionally, this option has received little consideration because these cases, with thousands or millions of parties, simply defied trial. Indeed, the first casebook on complex civil litigation, published in 1985, had no chapter on trial, and recent editions of that book and other casebooks on the subject have only brief treatments of the topic. The first casebook on class actions, published in 2000, begins a brief section on trial by stating that few class actions actually go to trial; most settle, either after the certification decision or as trial approaches. Indeed, these editors go on to suggest that the total number of class-action jury trials may be only a handful. In fact, one scholar has suggested that judges themselves have devised remarkably effective ways to keep mass tort cases away from juries. Yet trial may be the best antidote to the procedural and substantive concerns about class action settlements.