This blog addresses trends and developments in aggregate litigation: class actions, consolidations, and MDLs. It has a perspective/point of view that generally opposes aggregation for trials and typically supports aggregation for settlements. 

I’ve represented corporations in aggregate litigation for three decades. Over the years I’ve seen a shift in the types of cases I am asked to defend. It used to be that the aggregate litigation I was confronted with involved people who indisputably had some sort of physical or economic effects. There might be disputes about what caused these effects and whether the defendant had any liability for them, but the fact of injury generally wasn’t in doubt, even if the extent or amount of the injury was. If a product had a defect or there was an accident, those who were actually injured sued and the parties then disputed whether the tools of aggregation could be used to efficiently handle their claims fairly without depriving the defendant of its substantive rights and defenses.

That’s not often the scenario I confront today. Now, the moment there is bad news—such as a critical news article, a regulatory investigation, or a manufacturer recall—a class action is filed on behalf of all purchasers except those who actually were harmed. That’s right, everyone with an obvious “injury” is expressly excluded from the class. Instead, the class purports to cover “all other purchasers,” including the vast majority of people who never experienced a product malfunction or were otherwise dissatisfied with the product. Such suits claim that this group somehow paid “too much” for the product and failed to get the “benefit of their bargain.” But if you ran into these people on the street and asked them if they had been harmed by the product, they’d say no. In these cases, the tools of aggregation aren’t invoked to efficiently handle the claims of injured people. Rather, they are invoked to forge such a large group of claimants that they force a company that values its product’s reputation into a settlement that pays the lawyers a lot, while the consumers get next to nothing. 

Corporations often get a bad rap. Movies use them as villains, painting them as inherently evil, monolithic entities. They’re not. Corporations are comprised of people like you and me. For the most part these people have families and want the world to be a better place. They take pride in the work that they do, and they value the reputation of their company and its products. They are in it to make a profit, of course, but they are in it for the long haul. There are plenty of incentives not to make shoddy products or defraud one’s customers.

As with anything that has a human element, sometimes errors are made. A company that takes the long view wants to correct mistakes, compensate those who have actually experienced a loss, and continue to build on its reputation for excellent products and customer service.

Unfortunately, many state consumer fraud statutes are drafted in ways that allow some lawyers to wield the inconvenience and expense of aggregate litigation—along with the “all-in” risk of one six-person jury’s verdict on everybody’s claim—as a weapon to unfairly deprive a company of its right to hold individual claimants to their substantive proofs and use legitimate affirmative defenses it may have to individual claims.

Increasingly, class action defendants are taking a hard line in litigation. They are challenging the Article III standing of class action plaintiffs, as well as the ascertainability of the class and the propriety of the class definition. They are excluding unreliable expert testimony at the class certification stage. They are picking apart plaintiffs’ trial plans, insisting on the proper application of choice of law principles, and taking 23(f) appeals of class certifications. And they are daring to actually take cases to trial, and often winning. You can expect to read about these developments and more if you subscribe to this blog.

Please don’t write this blog off if you have a different perspective on class actions than I do. I have many friends who are plaintiffs’ lawyers. Some of them are even kind enough to come speak to my classes. I enjoy lively, respectful discussions and welcome your comments on my posts—especially if you do not agree with me.