Complex Litigation: Claim Abandonment

Abstract

This paper is a commentary and analysis of the problem of claim abandonment in class action litigation. The problem arises when a plaintiff’s class action attorney makes the strategic decision not to plead all available claims, or after filing a complaint, decides to amend a complaint to abandon previously pleaded claims. The issue of claim abandonment in the class action context implicates pleading, class certification, claim splitting, res judicata, and adequacy issues. Can an attorney be found to be an inadequate representative if the attorney abandons certain claims in the interests of preserving other claims? Will the voluntary relinquishment of claims during the development of a class action have a subsequent preclusive effect? What consequences does this decision have for the res judicata effect of a class judgment? Can class members subsequently pursue abandoned claims, or are they barred by the class judgment? The article discusses the varying approaches that courts have taken in addressing the array of problems raised by claim abandonment in the class action context. Some courts view the pleading of all available claims as an issue of counsel’s adequacy, while other courts refuse to impose a preclusive effect on abandoned claims.

Keywords: class action litigation, abandonment of claims, pleading class action claims, claim splitting in class actions, res judicata claim splitting, Rule 23 claim splitting