Dueling Class Actions

Abstract

When multiple class action suits are filed on behalf of the same class members, numerous problems ensue. Dueling class actions are confusing to class members, wasteful of judicial resources, conducive to unfair settlements, and laden with complex preclusion problems. The article creates a typology of different kinds of dueling class actions; explores the problems that plague each type; considers the effect the Supreme Court's decision in Matsushita Electric Industrial Co. v. Epstein, 516 U.S. 367 (1996), has had on these problems; evaluates the efficacy of existing judicial tools to curb them; and proposes an array of possible solutions. The more modest quick fixes include: (1) creation of a registry of all class actions filed; (2) amendment of Rule 23 and state class action rules to bar the certification of dueling class actions and to require the appointment of a class action advocate; (3) amendment of the Anti-Injunction Act to enlarge the authority of federal courts to enjoin dueling class actions; (4) amendment of the multidistrict litigation statute to permit transferee courts entertaining consolidated dueling class actions to retain the cases for trial; and (5) enactment of legislation requiring better notice to absent class members in dueling class actions. The article also explores more dramatic legislative solutions to permit the consolidation of all dueling class actions in a single forum.

Keywords: class action, Rule 23

JEL Classification: K19