Some Thoughts on Class Action Litigation

Class Action Watch Fall 1998

October 1, 1998

During the Federalist Society's November 1998 National Lawyers Convention in Washington, D.C., the Litigation Practice Group hosted a panel on class action litigation and reform. The panel featured Jonathan Beisner of O'Melveny & Myers, Duke Law Professor Francis McGovern, Marsha Rabiteau of Dow Chemical Company, Joseph Rice of Ness Motley, and Brian Wolfman of Public Citizen. U.S. Court of Appeals Judge Patrick Higginbotham served as the moderator. The following is a collection of some observations offered by the panelists:

"In our judgment, class actions are an enormously important tool for justice, and they can and have served the roles of compensation, deterrence, and reform. . . . And before getting into detail I would just remind the audience that it is very difficult to rely on media presentations of class actions, which tend to focus on abuses and anecdotes rather than empirical evidence. And there are some important empirical works going on. . . . you'll see that by and large compensation and deterrence were achieved . . . and there were relatively few abuses."

Brian Wolfman
Public Citizen

"The public is hurt with respect to how the class action device is being utilized. I don't think the public believes that the class action device is anything more useful than a means of transferring wealth. . . . In addition, the public is aware that products are not being offered in the marketplace because companies are unwilling to bear the risks of introducing products that may be the subject of an aggressive class action lawsuit."

Marsha Rabiteau
Dow Chemical Company

"[W]hat's happening is that when federal courts are using a restrictive view of the use of class actions, they are opening up the state courts. And, I think, the state courts are using an expansive view of class actions."

Joseph Rice
Ness Motley

"[W]e sort of whistle past the graveyard frequently when we talk abut the procedural dimension only of class actions. There is a very powerful dance between substance and procedure. You cannot really play with the rules very much without affecting substance in large ways."

Patrick Higginbotham
U.S. Court of Appeals