Life After Amchem: The Class Struggle Continues, page 4

Life After Amchem (continued)

Page 4

So while those involved on both sides of the debate in the Amchem settlement may view it as through a dark glass, and while those least familiar with the Amchem decision itself, or the events and decisions that preceded it, may don rose-colored glasses to proclaim that all class action settlements must die, the true import of Amchem is at once less obvious, more diffuse, and more hopeful. It is best perceived, to the extent that true perception is possible at this early date, through Lucy's kaleidoscope eyes.²³ The meaning of Amchem is elusive. Each must seek and find it on her own. Perhaps through exercise of willful optimism, but with an undeniable basis in the language of the opinion itself, I find that Amchem not only permits class actions to live but is fundamentally life-affirming.²⁴ There is not only life, but newly invigorated life, for class actions after Amchem.

Admittedly, Amchem's immediate effects have been largely negative from the perspective of plaintiffs' advocates. Without meaning to do so, the opinion seems to have stymied, at least temporarily, the Federal Rules Advisory Committee's efforts to codify separate criteria for settlement-purposes classes in a new Rule 23(b)(4).²⁵ While Amchem, by its very terms, advocates the continued -- and perhaps expanded -- use of class actions in securities, antitrust, and consumer class actions, some courts have seized upon the Amchem decision, or more accurately, the media coverage and legal commentary that depicted the decision as a blow to class actions, as an added excuse, or even a mandate, to deny class certification.²⁶ Hopefully, this effect will be short-lived. We should expect that the long-term impact of Amchem will be essentially favorable to those class actions that pit individuals of average means against modern corporations in cases involving claims too small to litigate feasibly on a case-by-case basis. This description not only covers most securities fraud, consumer fraud, and antitrust class actions, as Amchem itself acknowledged,²⁷ but it also describes most mass torts—even those for personal injury or wrongful death. Equity, the foundation of the American class action, does not permit any litigant to be priced out of access to civil justice.

1 | 2 | 3 | 4 | 5 | 6 | 7 | 8 | 9 | 10 | 11 | 12 | 13 | 14 | 15 | 16 | 17

NOTES

²³ The author is not advocating drug use as an aid to interpretation of Supreme Court decisions. She and her many contemporaries at the bar and on the bench are entitled to the metaphors of their youth. In deference to those older—and wiser—who recall the late 1960s with a residual sense of disapprobation, I offer a more venerable colloquialism as an alternative title for this essay: "Amchem: 23 Skidoo?"

²⁴ I use this term, advisedly, to curry favor with the readership in the state of Southern California. The term is not in common usage in the North—with Marin County constituting a notable exception.

²⁵ See Amchem, 117 S. Ct. at 2247.

²⁶ See, e.g., Ford v. Murphy Oil U.S.A., Inc., No. 96-2913, 1997 WL 559888 (La. Sept. 9, 1997) (reversing lower court's class certification of plaintiffs who suffered property damage and personal injury as a result of noxious emissions from defendant's petrochemical plants, citing Amchem as the main reason for reversal).

²⁷ "Predominance is a test readily met in certain cases alleging consumer or securities fraud or violations of the antitrust laws." Amchem 117 S. Ct. at 2250.