The Donovan Law Group

BP Oil Spill of April, 2010: Why Class Action Lawsuits May Not be in the Best Interests of Potential Plaintiffs

BP Oil Spill of April, 2010

Why Class Action Lawsuits May Not be in the Best Interests of Potential Plaintiffs

By Brian J. Donovan

May 9, 2010

INTRODUCTION

On April 20, 2010, the Transocean semi-submersible drilling unit Deepwater Horizon explodes and catches fire, approximately 51 miles southeast of Venice, Louisiana, while finishing a well for British Petroleum (BP). On April 22, 2010, a second explosion occurs causing the Deepwater Horizon to sink. Kinks in the riser (a long pipe that connects the wellhead to the rig), created as the rig sank to the seafloor, may be all that is preventing the Deepwater Horizon well from releasing its maximum flow. Sand is an integral part of the formations that hold oil under the Gulf. This abrasive sand, carried in the oil as it shoots through the pipe at high velocity, is resulting in the ongoing erosion of the riser. Under a worst-case scenario, if the riser were to disintegrate due to this internal sandblaster-like erosion, the resulting catastrophic failure could easily release 60,000 to 160,000 barrels of oil per day. The formation that was being drilled by Deepwater Horizon when it sank is reported to have tens of millions of barrels of oil.

The media is reporting that teams of lawyers from across the country are descending on the Gulf Coast to file potential class-action lawsuits, brought pursuant to Rule 23 of the Federal Rules of Civil Procedure, to recover damages suffered by plaintiffs and the class members as a result of the oil spill that resulted from the explosion and subsequent sinking of the oil rig Deepwater Horizon on April 22, 2010.

This article discusses the origin and evolution of the class action, the benefits and concerns of a class action, and whether a class action lawsuit would be in the best interests of plaintiffs when the damages suffered by each individual plaintiff as a result of the BP oil spill of April, 2010 are potentially so great.

CLASS ACTION: ORIGIN and EVOLUTION

In simplistic terms, a class action is a procedural device that permits one or more plaintiffs to file and prosecute a lawsuit on behalf of a larger group. The larger group consists of the class members who have suffered the same wrong at the hands of the defendant but who are too numerous for the court to adequately manage the lawsuit if each class member were required to be joined as named plaintiffs.

The class action may be traced to the “bill of peace,” a proceeding that originated in England’s equity courts in the seventeenth century. The bill of peace was used when the parties to a dispute were too numerous to be easily managed and when all parties shared a common interest in the issues. It permitted the case to be tried by representative parties, with the judgment rendered binding all. This was more efficient than trying each case individually and was more consistent with equity’s goal of doing complete justice.

American courts continued to use the bill of peace. Its most eloquent spokesman was Justice Joseph Story. In his Equity Jurisprudence (1836) and his Equity Pleadings (1838), Story stated that the purpose of the bill of peace was to promote finality. Law courts could only try issues between the plaintiff and the defendant in a particular case. Equity courts possessed a “power to bring all the parties before them, … at once to proceed to the ascertainment of the general right, … and then to make a decree finally binding upon all the parties.” The bill of peace provided a way to resolve multiparty disputes quickly and effectively.

Class actions are an exception to the usual rule that litigation is conducted by and on behalf of the individual named parties only. The “usual rule” is more commonly referred to as the “necessary parties rule,” and it required that all persons materially interested, either as plaintiffs or defendants in the subject matter of the bill ought to be made parties to the suit, however numerous they may be.

The common law models of litigation that envision one plaintiff sparring with one defendant were not designed to cope with harm experienced by huge numbers of geographically dispersed people.

Equity Rule 48 and Rule 38
Originally, American courts followed the example of our British brethren, using their power in equity to avoid multiplicity of actions where numerous individuals sued a common defendant for the same legal wrong. In 1842, the Supreme Court promulgated Equity Rule 48, officially recognizing representative suits where the parties were too numerous to be conveniently brought before the court, but refused to bind absent parties to any resulting judgments.” The Supreme Court explained this new rule as follows:

Where the parties interested in the suit are numerous, their rights and liabilities are so subject to change and fluctuation by death or otherwise, that it would not be possible, without very great inconvenience, to make all of them parties, and would oftentimes prevent the prosecution of the suit to a hearing. For convenience, therefore, and to prevent a failure of justice, a court of equity permits a portion of the parties in interest to represent the entire body, and the decree binds all of them the same as if all were before the court. The legal and equitable rights and liabilities of all being before the court by representation, and especially where the subject-matter of the suit is common to all, there can be very little danger but that the interest of all will be properly protected and maintained. It was not until 1912, some 70 years later, that Equity Rule 48 was rewritten, becoming Rule 38. The new rule maintained representative actions, but additionally allowed absent parties to be bound by judgments entered thereunder.

Rule 23
In 1938, Congress promulgated the Federal Rules of Civil Procedure, finally bringing into life the class action device pursuant to the original version of Rule 23. However, it was not until 1966, that the class action mechanism gained its current shape in an innovative 1966 revision. Thus, while it has its origins in equity, a class action is now a procedural litigation device that permits a small number of plaintiffs to represent and legally bind an entire class through a single lawsuit.

Rule 23(a)
To proceed as a class action, Rule 23 requires that the district court make the following findings: (1) Numerosity – the number of class members renders it impracticable to join them in the action;
(2) Commonality – the class members’ claims share common questions of law or fact;
(3) Typicality – the claims or defenses of the proposed class representatives are typical of those for the rest of the class; and
(4) Adequacy of Representation – the proposed class representatives will fairly and adequately protect the interests of the entire class.

Rule 23(b)
Furthermore, in addition to the numerosity, commonality, typicality and adequacy of representation requirements of Rule 23(a), the district court must make at least one of the following findings:
(1) prosecuting separate actions by or against individual class members would create a risk of:
(A) inconsistent or varying adjudications with respect to individual class members that would establish incompatible standards of conduct for the party opposing the class; or
(B) adjudications with respect to individual class members that, as a practical matter, would be dispositive of the interests of the other members not parties to the individual adjudications or would substantially impair or impede their ability to protect their interests;
(2) the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole; or
(3) the court finds that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.

Rule 23(c)
(1) Certification Order.
(A) At an early practicable time after a person sues or is sued as a class representative, the court must determine by order whether to certify the action as a class action.
(2) Notice.
(A) For any class certified under Rule 23(b)(1) or (b)(2), the court may direct appropriate notice to the class.
(B) For any class certified under Rule 23(b)(3), the court must direct to class members the best notice that is practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort.

CLASS ACTION: BENEFITS and CONCERNS

Benefits

The benefits of a class action allegedly include: (a) the facilitation of litigation that otherwise would not be brought because the value of individual claims is so small that it is not economically feasible to bring individual lawsuits. Such negative value claims may be feasible only when grouped in a class action, where the overhead of bringing the lawsuit is shared among all class members. Some academic commentators argue even if the class members do not ultimately receive much in the way of compensation, such lawsuits can have value in deterring conduct that is harmful to society; (b) the protection of the defendant from inconsistent obligations; (c) the protection of the interests of absentees; (d) the provision of a convenient and economical means for disposing of similar lawsuits; and (e) the facilitation of the spreading of litigation costs among numerous litigants with similar claims. Moreover, the class action device saves the resources of both the courts and the parties by permitting an issue potentially affecting every class member to be litigated in an economical fashion.

Concerns for Plaintiffs

A. “Faux” Class Actions
Recognizing the potential practical pitfalls of a certification decision (if not the significant constitutional concerns), the Supreme Court has made clear that courts should undertake a rigorous analysis under Rule 23 before a class action is certified.

Moreover, Professor Martin Redish of Northwestern University School of Law argues that courts should be required to scrutinize proposed class actions to weed out so-called “faux” class action cases, i.e., cases in which individual class members receive little or no compensation and only plaintiffs‘ counsel stand to benefit from class certification.

Professor Redish criticizes such actions on the ground that they effectively represent a transformation of the substantive law under Rule 23: As a result of the class action procedure, what purports to be a substantive compensatory framework has been furtively transformed into a structure in which it is quite possible that virtually no victim receives compensation through enforcement of the underlying substantive law. While he acknowledges that such a suit may “further the public interest” if it exposes, punishes, and deters illegal corporate behavior, he suggests that an amendment to Rule 23 dictating that attorneys‘ fees be measured by reference to the value of the total number of class member claims actually filed, rather than by the total amount of settlement or potential claims, would go far toward deterring pure bounty hunter class actions.

B. Waiving Due Process Rights Simply by Inaction
Class action procedures under Rule 23 often infringe the due process right to individual autonomy by sweeping large numbers of individuals into litigation – either through mandatory class action procedures under Rule 23(b)(1) and (b)(2) or through the opt-out procedure embodied in Rule 23(b)(3) – without explicit consent. Many commentators further argue that the opt-out mechanism under Rule 23(b)(3) should be abandoned in favor of an opt-in mechanism that requires absent class members to take some affirmative action before being swept into a class action. Allowing due process rights to be waived simply by inaction, as under the current version of the rule, does not sufficiently protect such constitutional rights. The opt-out procedure allows waiver through inaction under circumstances in which inaction is highly likely given that the effort it takes to affirmatively opt-out is outweighed by the marginal benefits of simply doing nothing.

C. Lack of Notice
Under Rule 23, notice is required under certain specified circumstances, including to inform absent class members that they have the ability to opt-out of a Rule 23(b)(3) class or that the court has been asked to approve a class settlement. Even beyond the required notice provisions, however, the rules authorize federal courts to require the parties to provide absent class members notice in other circumstances. Thus, for example, Rule 23(d)(1)(B) authorizes the court to require notice to protect class members and fairly conduct . . . any step in the action; the proposed extent of the judgment; or the members‘ opportunity to signify whether they consider the representation fair and adequate, to intervene and present claims or defenses, or to otherwise to come into the action.

Despite requirements regarding the notice that must be given to absent class members, there is always the possibility that many class members will not receive notice of the litigation or that such notice will be insufficient to fully inform them of their rights, thereby depriving them of any meaningful opportunity to opt-out. “You have injured people, but they’re basically comatose,” says Professor Redish. “They don’t know about the class action, they don’t care, and they are unlikely to be compensated.”

If a class is certified and the class representatives are unsuccessful, the absent class members‘ claims will be “legally obliterated” by the result of the litigation, even though they did not actively participate in the suit.

D. Lack of Input by Class Members
Likewise, as many have observed, a class action can reduce the input any particular plaintiff has in the conduct of the case. Where thousands are represented in a single lawsuit, it is simply impossible for them to have the same level of input regarding the prosecution of their claims. Moreover, conflicts among class members inevitably emerge, rendering the class action mechanism an imperfect means of resolving large-scale litigation.

E. Settlement Class Actions
Finally, settlement class actions undermine both the formalistic dictates of Article III and the important constitutional values underlying the requirement of adversary adjudication. In such classes, the parties expressly make certification contingent on the entry of a settlement resolving the litigation. Thus, while settlement classes may have certain attractive aspects, such as reducing litigation expenses, many of the traditional aspects of adversarial litigation are missing. As a result, according to Professor Redish, the settlement class is potentially the product of collusion among the parties: defendants who wish to rid themselves of the burden of litigation and plaintiffs‘ counsel who wish to receive immediate compensation. Redish argues these are flat-out unconstitutional because there is no “case or controversy,” a constitutional requirement for making a federal case out of something. Since the lawyers are all on the same side, he says, the only losers are plaintiffs who are forever barred from suing over the matter again.

The court in Georgine v. Amchem Products, Inc., 83 F.3d 610 (3rd Cir. 1996), noted that the presentation of class action cases in the form of negotiated settlements for approval by the courts under Rule 23(c) raises a constitutional issue whether there is a justiciable case or controversy. Such cases also raise practical concerns about potential collusion and inadequate representation, as well as the ability of the court to evaluate the merits of the settlement in a non-adversarial context. Georgine, 83 F.3d at 617.

Concerns for Defendants

The potential downside of the class action procedure for defendants is also significant. Certification of a class may bring pressure to settle weak or frivolous claims. Indeed, it may increase the filing of dubious claims.

In In the matter of Rhone-Poulenc Rorer, Inc., 51 F.3d 1293 (7th Cir. 1995), the court expressed strong reservations about the inappropriate pressure class certification places on defendants in a mass tort context. The court also observed that certification of a class can cause irreparable injury because if the case settles, the ruling that forced the defendant to settle will never be reviewed.

In Castano v. American Tobacco Co., 84 F.3d 734 (5th Cir. 1996), the court observed that class certification in the mass tort context dramatically affected the stakes for defendants, magnifying and strengthening the number of unmeritorious claims and creating insurmountable pressure to settle that is not present in individual trials.

The risk associated with bringing the case to trial is increased commensurably when a class is certified. Aggregation of claims makes it more likely that a defendant will be found liable and results in significantly higher damage awards. Furthermore, the ability to defend against weak claims is reduced where weaker claims are aggregated with claims of greater merit. These dynamics can often lead to a situation where the class action is employed as a form of legalized blackmail, by which an unscrupulous group of plaintiffs‘ attorneys effectively extort money from large companies by threatening their very existence with business-crushing class awards.

Concerns for Settlements

In the settlement context, the class action device may have equally perverse effects. Settlements may be the result of collusive deals among the defendants and certain plaintiffs, designed to achieve peace for defendants while extracting fees for the plaintiffs‘ attorneys. Such agreements potentially prejudice the interests of the class as a whole or at least those of certain class members.

Professor Redish notes that the class action device, while purportedly purely procedural, often has the practical effect of making significant alterations in substantive law. One way in which class actions essentially alter substantive rules is by effectively requiring absent class members to bring claims against a defendant. Under traditional notions of substantive law, the choice as to whether to bring a claim is solely that of the plaintiff, who is “master of the complaint.” In class actions, however, if a non-opt-out class is certified under Rule 23(b)(1) or 23(b)(2), absent class members are compelled to bring their claims as part of the litigation. Likewise, even in opt-out classes certified under Rule 23(b)(3), there is an element of coercion given that inertia may lead absent class members to refrain from taking action to affirmatively opt-out of a class. As a result, what purports to be a class action, brought primarily to enforce private individuals‘ substantive rights to compensatory relief, in reality amounts to little more than private attorneys acting as bounty hunters, protecting the public interest by enforcing the public policies embodied in controlling statutes.

Professor Redish argues that these constitutional problems result from Rule 23‘s deviation from the traditional conception of aggregate litigation, which was characterized by “substantively cohesive and interconnected groups.” It was only in the context of “group-held rights” that such representative procedures traditionally were employed, and only in that context that they could have potential res judicata effect. Thus, for example, the cases in which such procedural mechanisms historically were employed tended to involve “pre-litigation groups and cases involving separate claims into a common fund.” The device was not originally envisioned as en-compassing situations in which what are essentially individual claims are bundled as a result of the litigation process.

CLASS ACTION: BP OIL SPILL OF APRIL, 2010

A discussion of potential class action lawsuits, brought pursuant to Rule 23 of the Federal Rules of Civil Procedure, to recover damages suffered by plaintiffs and the class members as a result of the oil spill that resulted from the explosion and fire aboard, and subsequent sinking of the oil rig Deepwater Horizon on April 22, 2010, should focus on two primary issues: (a) whether the district court would certify the class action; and (b) if certified, whether a class action lawsuit would be in the best interests of plaintiffs when the damages suffered by each individual plaintiff are potentially so great.

Whether the District Court Would Certify the Class Action

A. Mass Torts
After the Supreme Court‘s decisions in Amchem Products, Inc. v. Windsor, 521 U.S. 591 (1997) and Ortiz v. Fibreboard Corp., 527 U.S. 815 (1999), it has become exceedingly difficult to certify a class in the context of a mass tort. Indeed, even before these decisions, courts had recognized that there was a national trend to deny class certification in mass tort drug or medical product liability/personal injury cases. This resistance to certification in such cases can be traced to the 1966 amendments to Rule 23. When the Rule Advisory Committee proposed its 1966 revisions to Rule 23, it wrote: “A ‘mass accident’ resulting in injuries to numerous persons is ordinarily not appropriate for a class action because of the likelihood that significant questions, not only of damages but of liability and defenses of liability, would be present, affecting the individuals in different ways. In these circumstances an action conducted nominally as a class action would degenerate in practice into multiple lawsuits separately tried.”

The individual factual and legal differences among individual claims in mass tort cases generally make it impossible to demonstrate the typicality or adequacy necessary for certification under Rule 23(a). Likewise, they make it difficult to demonstrate that a class has the requisite cohesiveness for certification under Rule 23(b)(2) or that common issues “predominate” as required under Rule 23(b). Moreover, in mass tort cases, absent class members may have a particularly acute interest in personally determining whether to file litigation in the first instance and the course the litigation takes.

Rule 23(b)(3) was not intended to address mass torts. The Court observed that, while the text of Rule 23(b)(3) does not preclude certification in cases with significant damages, the drafters “had dominantly in mind” the use of the class action to aggregate relatively small individual recoveries into a case that would be worthwhile for an attorney to litigate. Amchem Products, Inc. v. Windsor, 117 S.Ct. at 2244. The Court recited the 1966 Advisory Committee Note that mass tort cases are “ordinarily not appropriate” for class certification, id. at 2250, saying, “The Committee’s warning continues to call for caution when individual stakes are high and disparities among class members great.” Id. The Court did not rule out any possible certification of a class in a mass tort context, but clearly called for a return to the original concept of Rule 23(b)(3) in which mass torts were treated as presumptively uncertifiable.

The court has further held that immature torts are not appropriate for class certification. The Fifth Circuit held that prior individual adjudication of a significant number of mass tort claims are necessary to ascertain whether common or individual issues will predominate at trial. Until a sufficient number of cases have been tried individually to verdict the court simply lacks the information necessary to make an informed decision and about predominance and superiority. Castano, 84 F.3d at 749-750.

The BP oil spill of April, 2010 has the potential to become the mass tort of all mass torts cases. As noted in the introduction, under a worst-case scenario, if the riser were to disintegrate due to the internal sandblaster-like erosion, the resulting catastrophic failure could easily release 60,000 to 160,000 barrels of oil per day. The formation that was being drilled by Deepwater Horizon when it exploded and sank is reported to have tens of millions of barrels of oil.

The District Court may ultimately deny class certification because the individual factual and legal differences among individual claims of potential plaintiffs to recover damages suffered as a result of the BP oil spill of April, 2010 will make it difficult to demonstrate:
(a) the typicality necessary for certification under Rule 23(a);
(b) adequacy of representation necessary for certification under Rule 23(a);
(c) that a class has the requisite cohesiveness for certification under Rule 23(b)(2); and
(d) that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy as required under Rule 23(b).

Given that the personal injuries and environmental and economic damages suffered by each individual plaintiff as a result of the BP oil spill of April, 2010 are potentially so great, absent class members would have a particularly acute interest in personally determining whether to file litigation in the first instance and the course the litigation takes.

Moreover, since the damages claimed by each individual plaintiff in the BP oil spill case would be so great, such claims may not be certifiable under Rule 23(b)(3) because they do not meet the necessity requirement. That is, a class action would not be superior to other available methods for fairly and efficiently adjudicating the controversy.

B. Scrutiny of Class Definition
Typically, a proposed class cannot be certified unless it is adequately defined and clearly ascertainable under objective criteria. Defining the class is of critical importance because it identifies the persons: (1) entitled to relief, (2) bound by a final judgment, and (3) entitled under Rule 23(c)(2) to the best notice practicable in a Rule 23(b)(3) action. Courts have observed that an adequate class definition is crucial because the outcome of a class action suit is res judicata as to all unnamed class members. Where a plaintiff fails to present a workable class definition, the class allegations are properly stricken or dismissed as a matter of law.

The damages suffered by victims of the BP oil spill will be enormous and on-going. The livelihoods of all persons whose businesses rely on the natural resources of the Gulf Coast are at risk. Commercial fishermen, oyster harvesters, shrimpers, and  businesses involved, directly or indirectly, in processing and packaging for the seafood industry will experience the end of a way of life that, in many cases, has been passed down from one generation to the next.

Potential plaintiffs which may have a claim for damages as a result of the BP oil spill include but are not limited to:
1. Commercial and recreational fishermen, oyster harvesters, and shrimpers;
2. Businesses involved, directly or indirectly, in processing and packaging for the fishing industry;
3. Owners, operators, crew members and shore-side employees of charter and private boats;
4. Owners, operators and employees of restaurants, marinas and docks;
5. Persons involved in the tourism industry;
6. Owners of real estate; and
7. City, county/parish and state governments.

It is precisely this sort of case in which constitutional concerns may be particularly significant. Given that it is impossible to define who exactly will be bound by a class determination, there are obvious concerns regarding due process. Absent class members will not be able to determine whether they must assert their right to opt-out of a proposed class where the class definition is vague. Accordingly, they may be held to have effectively waived any due process right not only merely through inaction, but where their objection to inclusion is rendered effectively impossible due to a vague class definition.

Whether a Class Action Lawsuit Would be in the Best Interests of Plaintiffs
When the Damages Suffered by Each Individual Plaintiff are Potentially so Great

If the court certifies an action as a class action in any lawsuit relating to the BP oil spill of April, 2010, each individual potential plaintiff should undertake a rigorous analysis to determine the amount of damages he or she suffered as a result of the BP oil spill. These damages may include, but are not limited to, real property damages, personal property damages, loss of profits and earning capacity, loss of commercial and subsistence use of natural resources, increased costs of public services, and loss of revenues. Victims of the BP oil spill may also have personal injury claims stemming from the oil spill, i.e., respiratory problems and illnesses, sinus damage, difficulty breathing, and burning of the throat and nasal passages. The extent to which victims of the BP oil spill may suffer long-term serious illnesses has yet to be determined.

Class Action Lawsuit
If the amount of damages suffered by the individual potential plaintiff is small, it may not be economically feasible for the plaintiff to file an individual lawsuit. Accordingly, a class action lawsuit may be in the best interests of this plaintiff.  The class action would aggregate the relatively small individual recoveries into a case that would be worthwhile for an attorney to litigate.

Individual Lawsuit
Given that the damages suffered by the vast majority of individual potential plaintiffs as a result of the BP oil spill of April, 2010 are potentially so great, it should be economically feasible for many individual plaintiffs to file individual lawsuits. Here, class treatment would not be necessary to permit effective litigation of the claim. An individual lawsuit will: (a) ensure the plaintiff that the plaintiff’s attorney has his or her best interests in mind; (b) protect the plaintiff’s due process rights; (c) ensure that the plaintiff is not a victim of a so-called “faux” class action case, i.e., a case in which individual class members receive little or no compensation and only plaintiffs‘ counsel stand to benefit from class certification; (d) give the plaintiff control over the prosecution of the case; (e) allow the plaintiff to present evidence of exposure, injury, and damages relating to his or her particular claim; and (f) allow the plaintiff to make the decision on whether or when to settle.

The potential causes of action in this case would include, but not be limited to: negligence, the Oil Pollution Act (33 U.S.C. Section 2702), strict liability for abnormally dangerous activity, strict products liability for manufacturing defect, and strict liability pursuant to the applicable state statute for the prohibited discharge of pollutants.

The potential defendants in this case would include: BP Plc, BP Products North America, Inc., BP America, Inc., Transocean Ltd., Transocean Offshore Deepwater Drilling, Inc., Transocean Deepwater, Inc., Halliburton Energy Services, Inc., Cameron International Corporation f/k/a Cooper Cameron Corporation, and Hyundai Heavy Industries Co., Ltd.

CONCLUSION

Each individual potential plaintiff who has suffered damages as a result of the BP oil spill of April, 2010 should immediately seek competent legal counsel to directly represent his or her interests. Many victims of the BP oil spill may not be acquainted with a lawyer. Other potential plaintiffs may hesitate to see a lawyer because they have never used a lawyer’s services before. Each state bar association has a  lawyer referral service designed to make it easy for potential plaintiffs to contact a lawyer. A victim of the BP oil spill should not hesitate to contact his or her state bar association lawyer referral service to obtain the contact information of an experienced attorney. If the amount of damages suffered by the individual potential plaintiff is small, it may not be economically feasible for the plaintiff to file an individual lawsuit. Accordingly, a class action lawsuit may be in the best interests of this plaintiff. However, given that the damages suffered by the vast majority of individual potential plaintiffs as a result of the BP oil spill of April, 2010 are potentially so great and will be on-going, class treatment would not be necessary to permit effective litigation of the claim. Here, when the amount of damages suffered by the individual is so great, the filing of an individual lawsuit should be economically feasible and may be in the best interests of the plaintiff. This decision should be made by the potential plaintiff only after a thorough consultation with his or her legal counsel.

APPENDICES

References
Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 613, 117 S.Ct. 2231 (1997).

Califano v. Yamasaki, 442 U.S. 682, 700-701, 99 S.Ct. 2545, 2557-2558 (1979).

Castano v. American Tobacco Co., 84 F.3d 734 (5th Cir. 1996).

Coffee, J., Class Wars: The Dilemma of the Mass Tort Class Action, 95 Colum.L.Rev. 1343, 1356-58 (1995).

Fischer, Daniel, Are Class Actions Unconstitutional?, Forbes.com (January 21, 2010).

General Telephone Co. v. Falcon, 457 U.S. 147, 155, 102 S.Ct. 2364, 2369, 72 L.Ed.2d 740 (1982).

Georgine v. Amchem Prods., Inc., 83 F.3d 610, 633 (3d Cir. 1996).

Haley v. Medtronic, Inc., 169 F.R.D. 643, 652 (C.D. Cal. 1996).

Hansberry v. Lee, 311 U.S. 32, 41, 61 S.Ct. 115, 118 (1940).

In re Agent Orange Prod. Liab. Litig., 818 F.2d 145, 164 (2d Cir. 1987).

In re Joint Eastern & Southern Dist. Asbestos Litigation, 129 B.R. 710, 803 (E.D.N.Y. 1991), judgment vacated, 982 F.2d 721 (2d Cir. 1992).

In the matter of Rhone-Poulenc Rorer, Inc., 51 F.3d 1293 (7th Cir. 1995).

Nagareda, Richard, Mass Torts in a World of Settlement 72 (2007).

Ortiz v. Fibreboard Corp., 527 U.S. 815, 832, 119 S.Ct. 2295, 2308 (1999).

Redish, Martin, Wholesale Justice: Constitutional Democracy and the Problem of the Class Action Lawsuit (Stanford University Press, 2009).

Smith v. Swormstedt, 57 U.S. 288, 303 (1853).

Smith, Douglas, The Intersection of Constitutional Law and Civil Procedure: Review of Wholesale Justice – Constitutional Democracy and the Problem of the Class Action Lawsuit
(Northwestern University Law Review Colloquy, Vol. 104, 2010).

Trangsrud, Roger, Joinder Alternatives in Mass Tort Litigation, 70 Cornell L. Rev. 779, 834 (1985).

United States Parole Comm’n v. Geraghty, 445 U.S. 388, 402-03, 100 S.Ct. 1202, 1211-12 (1980).

West v. Randall, 29 F. Cas. 718, 721 (No. 17,424) (C.C.D.R.I. 1820).
 

 

About the Author
Brian J. Donovan is an attorney and marine engineer with over thirty-four years of international business experience.

Mr. Donovan, a member of The Florida Bar, The U.S. District Court, Middle District of Florida and The United States Court of Appeals for the Eleventh Circuit, holds a J.D. from Syracuse University College of Law (where he was recipient of the “Global Law & Practice Award” as the outstanding graduate in the areas of International Law and International Business Law) and a B.S., with honors, in Marine/Mechanical and Nuclear Engineering from the United States Merchant Marine Academy.

Mr. Donovan, with deep family roots in southern Louisiana, has first-hand knowledge of the catastrophic devastation of the Louisiana Gulf Coast caused by hurricanes Katrina and Rita. He fully appreciates that the damage caused by Katrina and Rita may pale in comparison to the massive and potentially unprecedented environmental and economic impact of the BP oil spill of April, 2010.

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