Complex Litigation: Dueling Class Actions

Abstract

Commentary and analysis of the problem of multiple, conflicting class actions in state and federal courts, and judicial approaches to dealing with the phenomenon. The article focuses on the problem of copy-cat or repetitive class actions and the strategic reasons for the propagation of competing class actions. Dueling class actions come into existence when a class litigation filed in one forum is copied or duplicated by the same or other attorneys in another federal or state forum. This situation raises serious problems relating to a race to judgment, res judicata effects of a class judgment or settlement, and adequacy of representation. In addition, the possibility of the Rule 23(b)(3) opt-out class engenders novel opportunities for attorneys to attempt to configure new class actions consisting of opt-out claimants from an existing class action. The federal courts have been in the vanguard of devising innovative ways to deal with duplicative or copy-cat litigation in federal and state courts. The article surveys procedural mechanisms such as MDL procedure (the multidistrict litigation statute, 28 U.S.C. § 1407); the federal Anti-Injunction Act (28 U.S.C. § 2283), and the All Writs statute (28 U.S.C. 1651),a s well as a variety of judicial decisions from federal and state court attempting to manage, regulate, or repudiate attempts at duplicative litigation.

Keywords: Rule 23, class actions, dueling class actions, copy-car class actions, Anti-Injunction Act, All Writs Act, MDL statute, 28 U.S.C. 1407