The Federalist Society

Fluid Recovery: Manufacturing "Common" Proof in Class Actions?

October 2, 2007

Jessica D. Miller, Nina Ramos

As the Class Action Fairness Act (CAFA) moves toward its third anniversary, plaintiff s’ attorneys continue their efforts to preserve aggregate litigation in a post-CAFA age. Without doubt, CAFA has put the squeeze on traditional plaintiff class action strategies. No longer can plaintiff s simply fi le a class action in a favored state court jurisdiction and be assured of certification. Nor can they use the leverage of unfavorable state courts to extract settlements of meritless claims. Instead, plaintiffs must now pursue most class action litigation in federal courts, which have, as a general matter, been far more skeptical of such cases than their state court  counterparts, and have taken seriously Fed. R. Civ. P. 23’s requirement that class actions can only be certified if each class member can prove his/her claims using the same evidence. Because this standard is diffi cult, if not impossible, to satisfy in the vast majority of product liability cases, product liability class actions are generally disfavored in federal court....

Fluid Recovery: Manufacturing "Common" Proof in Class Actions?  


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