Torts - Cases, Principles, and Institutions Fifth Edition, 2016a

Witt & Tani, TCPI 10. Damages
23 of the Federal Rules of Civil Procedure. Under Rule 23, a court may certify a class of
plaintiffs, represented by a named plaintiff and appoint counsel for the class. The settlement or
judgment reached in the class action has the power to bind class members that did not actively
consent to the suit or participate in it. Sometimes, class counsel may be required to provide notice
of the ongoing litigation to class members and give them the opportunity to opt out of the
litigation.
Because class actions have the power to bind parties not immediately before the court,
courts take a much more active role in managing the litigation and settlement process. For
example, district courts must find that class counsel will fairly and adequately represent the
interests of all the plaintiffs in the class and must approve any final settlement as fair. While mass
torts were not originally envisioned as being well suited to class actions, use of the class actions
for mass tort actions grew substantially in the 1970s and 1980s. Judith Resnik, From “Cases” to
“Litigation,” 54 LAW & CONTEMP. PROBS. 5 (1991). The class action vehicle held appeal to both
plaintiffs and defendants. Plaintiffs’ counsel gets the ability to bring together a much larger
number of plaintiffs than they could ever individually enlist, giving them access to higher
damages and attorney’s fees. Defendants get the opportunity to achieve a certain, speedy, and
relatively quick resolution to an outstanding liability that might otherwise drag on for decades.
However, the Supreme Court in the late 1990s decided a pair of asbestos cases, Amchem
Products, Inc. v. Windsor, 521 U.S. 591 (1997), and Ortiz v. Fireboard Corp, 527 U.S. 815
(1999), that made it exceedingly difficult for plaintiffs to bring class action suits for personal
injury damages in mass tort cases. Both cases involved a global settlement of claims for a class
that included many different plaintiffs—plaintiffs who had died, plaintiffs who were experiencing
ongoing illness, plaintiffs who knew they were exposed to the asbestos and who had not yet
suffered injury, and plaintiffs who may not have been aware of their exposure. The Supreme
Court held that there was a conflict of interest between these different types of plaintiffs, who
might prefer different settlement arrangements, and ruled that each subgroup was not adequately
independently represented in the settlement process.
Underlying the Court’s decisions was a concern that the class action vehicle itself might
be used as a type of collusion between the plaintiffs’ attorney and the defendants to limit the
defendant’s exposure and increase the plaintiffs’ attorneys’ fees at the expense of absent class
members. For example, in Ortiz, the parties claimed that the class action should not have an optout
procedure for plaintiffs because the defendants did not have sufficient resources to cover all
the claims—which required all the plaintiffs to come together to divide the limited resources.
This fact was simply stipulated to by the parties, which led some to suspect that the plaintiffs’
lawyers had agreed to so stipulate in order to provide the defendants with the closure they
required as a term of the class settlement deal. Both the plaintiffs’ attorney and the defendants
seemed to benefit from alleging that there was a limited pot of money. The plaintiffs’ attorney
won the ability to represent the entire class, without opt-outs, and the defendants won the ability
to cap their liability at the amount they said they were able to pay.
As many critics quickly pointed out, however, the difficulty with the Court’s approach
was that the alternatives were no better—and probably far worse. The idea that asbestos litigation
without class actions would provide individual asbestos victims with a day in court was
exceedingly implausible. To the contrary, the promise of peace for defendants was all that had
seemed to offer the hope that plaintiffs would be able to recover some amount in a relatively
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