The Supreme Court’s recent decisions concerning preclusion doctrine stress the “deep-rooted historic tradition that everyone should have his own day in court.” Nonetheless, “properly conducted class actions” are a recognized exception to this general rule because such actions ensure that nonparties are “adequately represented by someone with the same interests who was a party to the suit.” Mass torts, however, frequently involve numerous plaintiffs with diverse legal and factual issues that are not “sufficiently cohesive to warrant adjudication by representation.” Thus, it may be reasonably feared that the Court’s firm insistence on preserving individual autonomy will deny plaintiffs the economies of scale and other benefits of class actions that make it economically viable to advance their claims. Although repeat players have largely abandoned the mass tort class action, they have effectively modified other aggregative devices to operate in largely the same manner as class actions—so much so that some have characterized them as “quasiclass actions.” Asbestos bankruptcies, for example, are often controlled by one or more of the lawyers who advanced the Amchem and Ortiz settlement class actions, follow the same basic settlement design, and are otherwise functionally equivalent to the settlements rejected by the Court in those cases. And plaintiffs’ lawyers in these quasi-class actions tend to enjoy substantially all of the leverage and economies of scale they should expect to find in a class action. My objective in this Article is to examine the manner in which repeat player domination is achieved in non-binding global mass tort settlements in multidistrict litigation.
S. Todd Brown,
Plaintiff Control and Domination in Multidistrict Mass Torts,
61 Clev. St. L. Rev.
available at http://engagedscholarship.csuohio.edu/clevstlrev/vol61/iss2/6