The Law Firm of Piacentile, Stefanowski & Malherbe LLP

A History of Aggregate Litigation

Although we may think of large, aggregated litigation as a recent development, for centuries there have been procedures to group large sets of similar claims together for collective treatment. At least by the time of King John (1199-1216), lawsuits involving trade guilds, villages, and towns were common. In later centuries, however, such group litigation declined and had fallen into disuse in England by the mid-nineteenth century. However, it was not unknown, either there or in the newly independent United States, as evidenced by the opinion of Justice Joseph Story in West v. Randall, 29 Fed. Cas. 46 (1820), in which he wrote, “It is a general rule in equity, 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 idea of a class action was formally recognized in Federal Equity Rule 48, which the Supreme Court adopted in 1842, which stated :

“Where the parties on either side are very numerous, and cannot, without the manifest inconvenience and oppressive delays in the suit, be all brought before it, the court in its discretion may dispense with making all of them parties, and may proceed in the suit . . . .”

This rule allows a single individual to represent a larger group, and established the primary prerequisite for any class action lawsuit, that there be a large number of plaintiffs.

In 1938, the Federal Rules of Civil Procedure were adopted, replacing both the Equity Rules and the Conformity Act (which governed common law cases). These new rules included the first version of Rule 23, defining and governing class actions. That rule has been amended more than once since then, most significantly in 1966, but there always has been some sort of class action procedure formally available in federal courts since at least the Equity Rules were adopted in1842.

Class actions can and have been used to deal with a wide variety of legal issues; for example, the landmark school desegregation case which resulted in the Brown v. Board of Education decision (347 U.S. 483 (1954)) was brought as a class action. In recent decades, however, this ancient process appeared to be the obvious way to deal with a relatively new phenomenon, the mass tort. Traditionally, torts arose from idiosyncratic events where a single injured plaintiff sues a defendant alleged to have wrongfully caused the injury. Mass torts, however, arise when one product is allegedly the cause of injuries to large numbers of people, or one catastrophic event (such as a chemical leak) causes widespread harm.

At first glance, use of class actions to resolve disputes where dozens, hundreds or even thousands of people allege the same event or product caused similar injuries to all of them seems to be an ideal procedure. However, in the late 1990s it appeared the class action would not be useful in resolving mass torts, because despite each individual claim sharing many common issues of fact and law, there were also significant differences between claims. For example, one set of mass torts were the claims arising from asbestos exposure, in particular among those exposed in the workplace in such environments as shipyards. In the 1990s, thousands of such disparate asbestos claims were assigned as a group to one federal judge, but they were not formally aggregated in any way. Lawyers who had formed an informal committee for all the plaintiffs south to have a class certified for the sole purpose of approving a global settlement of all the plaintiffs’ claims. The Supreme Court, however, held this class was impermissible because common issues did not predominate. The Court noted that the members of the class were exposed to different types of asbestos-containing products, in different ways, over different periods, and for different amounts of tim, and the harms they suffered varied widely.

The limitations on class action lawsuits for mass torts led to the massive growth in the collective action known as Multi-District Litigation (“MDL”), established in 28 U.S.C. § 1407. This procedure aggregates cases with similar claims, most obviously mass tort claims, in one proceeding for pretrial matters, from discovery up to and through dispositive motions, but contemplates individual trials for each claimant. Most of the claims joined in MDL, however, are settled, and there are no trials. Still, within these MDLs, class action procedures often are brought back into play, particular the creation of settlement classes. One large MDL can proceed through discovery, and perhaps be split into several different settlement classes in recognition of the difference between some of the claims. When time comes to present the settlement that the lead counsel in the MDL proceeding have been negotiating, the judge presiding over that MDL can approve various classes solely for the purpose of allowing the litigants to approve the settlement or to opt out of the class and proceed on their own to trial.

Today, MDLs, often using elements of a class action such as certifying settlement classes, dominate the federal courts’ docket. The total number of MDL actions pending as of May 16, 2022 was 185, but each contains hundreds or, in some cases, thousands, of individual constituent actions. In all, the number of cases on the federal docket that are currently joined into an MDL is 428,414. Meanwhile, the total number of active cases, civil and criminal, pending in the federal district courts as of the date of official records being complied in 2021 was only 711,778, so well over half the total cases in the federal system are part of an MDL. The issues range from patent to antitrust to securities claims, but the majority are mass torts. As our society grows more interconnected and dependent on complex technology, such forms of aggregate litigation are likely to continue to thrive and increase.