Re-Interpreting American Class Action Procedure: The United States Supreme Court Speaks

Abstract

At the end of the twentieth century, the United States Supreme Court decided two landmark cases dealing with the American class action rule, Federal Rule of Civil Procedure 23. These decisions, Amchem Products, Inc. v. Windsor and Ortiz v. Fibreboard Corp., are of tremendous significance for American class action jurisprudence because the Supreme Court has not addressed the class action rule in more than a dozen years. Thus, the Court’s re-examination and re-interpretation of class action procedure has set forth standards that will govern American class action litigation for decades to come.

The Court’s decisions are signally important for various reasons. During the decade in which the Supreme Court entertained no appeals relating to class action procedure, the lower federal courts experienced a renaissance in class action litigation. Thus, as class action litigation increased, attorneys in this period creatively expanded use of the class action rule, particularly to attempt to resolve aggregate mass tort litigation. In absence of guidance from the Supreme Court the lower federal courts articulated an expansive jurisprudence relating to the class action rule.

By the early 1990s the innovative efforts of attorneys and courts to use the class action rule to resolve mass tort litigation culminated in two highly controversial “global” (that is, nationwide) class action settlements of asbestos claims. These two asbestos class settlements, which federal trial courts in Pennsylvania and Texas approved as fair and reasonable, formed the basis for the historic Amchem and Ortiz appeals to the United States Supreme court. These two innovative global asbestos settlements offered the Supreme Court the opportunity to re-examine and define the proper scope and application of Rule 23.

The Court’s two decisions in Amchem and Ortiz must be understood in relation to the 1966Rule 23 amendments, which effectively created modern American class action procedure. The American class action rule was first promulgated in 1938. The Advisory Committee on Civil Rules completely revised Rule 23 in the early 19060s to create a more flexible and functional rule, and Congress enacted the proposed rule amendments in 1966. The Amchem and Ortiz decisions represent the Court’s efforts to interpret the intent and scope of the 1966 amendments to the class action rule.

Keywords: American class action, Rule 23, Amchem v. Windsor, Ortiz v. Fibreboard, settlement class, asbestos litigation, global peace, limited fund class action, damage class action