Life After Amchem: The Class Struggle Continues, page 11

Life After Amchem (continued)

Page 11

It is no secret that class actions -- formerly the province of federal diversity jurisdiction -- are being brought increasingly in the state courts. Class actions, including those nationwide in scope, are increasingly being tried and settled in these courts. Many academic commentators have lamented this trend, and some federal courts have disregarded or disparaged the certification decisions of their state court brethren.

There has, however, been an abdication by some federal courts of their rightful leadership in the struggle toward the full realization of the goals of civil justice.⁴¹ The judicial escapism exhibited by courts that avoid the management challenges of nationwide class certification by invoking purported predominant variations in state law while ignoring or misstating the substance of state law,⁴² or who consign persons of small means to a deadly war of attrition and deny them class treatment so that the "traditional" methods of thousands of individual trials might somehow yield a definitive outcome,⁴³ drives many litigants to state courts for relief. Additionally, there is an entirely justified preference for state courts as class certification courts of first resort since these are courts of general, not limited, jurisdiction and must address the issues.

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NOTES

⁴¹ The federal courts do continue to have their judicial champions. As Judge Weinstein declared,

I do not believe that the federal and other courts . . . should retreat from their post-World War II role of protecting the injured individual and offering a forum to vindicate economic, political, social, and medical rights. More justice for more people should be our goal—not less justice for ever fewer people. Nevertheless, I cannot agree with those who would have the courts attempt to treat mass tort cases on a one-by-one basis, as though they were two-car accidents.

INDIVIDUAL JUSTICE, supra note 29, at 127.

⁴² For example, recent federal decisions recited the purported need for proof of reliance to justify the non-certification of fraud claims, despite the long-established case law that "reliance"—or, more correctly, the causation element of fraud—may be proved by circumstantial evidence and does not require individual testimony as a matter of law. See, e.g., Hunter v. McKenzie, 197 Cal. 176 (1925). Hunter and many other state cases have long since resolved the issues of privity and reliance that are the resort of judges desiring a principled basis upon which to justify denial of class treatment. These cases did so in a manner fully consistent with class treatment and classwide proof. On privity, the Hunter court stated the following:

While some connection, of course, direct or indirect, between the party charged with making the false representations and the party relying thereon must be shown, it is not essential, however, in support of a cause of action for damages resulting from false representations that the false representations be shown to have been made directly to the party claiming to have relied upon them.

Id. at 185 (citation omitted). On reliance, the court wrote that:

[I]t was not essential to a [misrepresentation] cause of action . . . to produce direct evidence that [plaintiff] relied upon such false representations. The fact of reliance upon alleged false representations may be inferred from the circumstances attending the transaction which oftentimes afford much stronger and more satisfactory evidence of the inducement . . . than . . . direct testimony to the same effect. We are satisfied that it may be fairly inferred from the evidence concerning the nature of the transaction . . . the relation of the parties, and the circumstances surrounding the entire transaction . . . .

Id. at 185-86 (citations omitted).

⁴³ See, e.g., Castano v. American Tobacco Co., 84 F.3d 734, 752 (5th Cir. 1996). The Fifth Circuit decertified the nationwide tobacco addiction class, stating that "‘[T]raditional ways of proceeding reflect far more than habit. They reflect the very culture of the jury trial . . . .' The collective wisdom of individual juries is necessary before this court commits the fate of an entire industry or, indeed, the fate of a class of millions, to a single jury." Id. at 752 (quoting In re Fibreboard Corp., 893 F.2d 706, 711 (5th Cir. 1990)).