Life After Amchem: The Class Struggle Continues, page 6

Life After Amchem (continued)

Page 6

[T]he Advisory Committee had dominantly in mind vindication of "the rights of groups of people who individually would be without effective strength to bring their opponents into court at all."

The policy at the very core of the class action mechanism is to overcome the problem that small recoveries do not provide the incentive for any individual to bring a solo action prosecuting his or her rights. A class action solves this problem by aggregating the relatively paltry potential recoveries to something worth someone's (usually an attorney's) labor.³¹

Courts tempted to invoke Amchem to justify the denial of certification or the decertification of nationwide classes would be well advised to heed the passages quoted above. They call for the continued use of the class action mechanism to fulfill its core purposes. It is self-evident that claimants in such cases cannot, will not, and should not be expected to initiate or pursue individual litigation as a prerequisite to relief. The existence of the class action rule and its grounding in equity means they need not do so. They are entitled to the representative prosecution of their claims and the courts' protection of their interests.

But after these principled declarations, the Amchem decision seems to go awry in analyzing the prospective personal injury/wrongful death claims whose class-wide compromise was before it, as if the claimants themselves could, and thus should, assert their claims individually. For many years, courts and commentators have been stating the obvious: In a mass tort context, individuals have, as a matter of economic and institutional reality, little control over their individual destinies. This is not the fault of class actions but is a product of limited individual and institutional resonances and is exacerbated when class actions are not employed.³²

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NOTES

³¹ Amchem, 117 S. Ct. at 2246 (quoting Mace v. Van Ru Credit Corp., 109 F.3d 338, 344 (7th Cir. 1997)).

³² See, e.g., Hon. Spencer Williams, Mass Tort Class Actions: Going, Going, Gone?, 98 F.R.D. 323 (1983). Judge Williams, whose comprehensive, sua sponte class certification decision in the Dalkon Shield IUD litigation was reversed by the Ninth Circuit in In re Dalkon Shield IUD Prods. Liab. Litig., 693 F.2d 847 (9th Cir. 1982), cert. denied, 459 U.S. 1171 (1983), was ultimately vindicated, thirteen years later, by the Ninth Circuit's decision in Valentino v. Carter-Wallace, Inc., 97 F.3d 1227 (9th Cir. 1996), which held "that the law of this circuit, and more specifically our leading decision in Dalkon Shield, does not create any absolute bar to the certification of a multi-state plaintiff class action in the medical products liability context." Id. at 1230. The Ninth Circuit focused on the sufficiency of the trial court's formal findings on certification criteria:

We decline to hold, at least at this early stage of the litigation, that there can never be a plaintiff class certification in this particular case. We do hold, however, on the basis of the record before us, that we must vacate this class certification order, because there has been no demonstration of how this class satisfies important Rule 23 requirements, including the predominance of common issues over individual issues and the superiority of class adjudication over other litigation alternatives.

Id. So, too, did the Amchem decision acknowledge that "the text of [Rule 23] does not categorically exclude mass tort cases from class certification," and recognized that "[e]ven mass tort cases arising from a common cause or disaster may, depending upon the circumstances, satisfy the predominance requirement." Amchem, 117 S. Ct. at 2250. Thus, while predominance and superiority in the mass tort/product liability context must be irrefutably shown and scrupulously found, class treatment of multi-state and nationwide tort claims remains both possible and proper.