Abandoning the Federal Class Action Ship: is There Smoother Sailing for Class Actions in Gulf Waters?

Abstract

A series of federal Court of Appeals decisions handed down in rapid succession, as well as U.S. Supreme Court decisions have sent definitive signals to class action practitioners that federal courts, at least, were not hospitable forums to pursue massive nationwide mass tort or products liability class actions.

This federal class action jurisprudence in the last five years has contributed largely to redefining, in a very limited and constricted fashion, the parameters of class action litigation, including expansive pronouncements about the requirements for both certification of litigation classes, and the certification and approval of settlement classes. In general, the Supreme Court and federal appellate courts have sent the message that federal judges, at least, are to pay "heightened attention" to class certification requirements in the settlement context, a requirement that should be applied with equal force to certification of litigation classes as well. The notion that federal judges must conduct a "rigorous analysis" to determine the propriety of class certification also has entered the federal class action lexicon. The federal court's end-of-century class action jurisprudence has included expansive dicta, expositing on the appropriate role and limitations of class action litigation in resolving aggregate disputes.

The purpose of this paper is to examine the intersection of federal class action jurisprudence at the end of this century ? most particularly in the past five years?and to assess the extent to which the five Gulf States (Alabama, Florida, Louisiana, Mississippi, and Texas) have adopted and conformed to this federal jurisprudence. This paper poses and attempts to answer the question whether, as class action plaintiffs have abandoned the federal class action ship in the face of adverse or stringent class action decisions, plaintiffs have received more favorable consideration in Gulf state forums.

JEL Classification: K13, K41