Coming Soon to a Theater Near You

On May 20 of this year, the members of the American Law Institute (ALI) unanimously approved a project that was five years in the making ' “Principles of Aggregate Litigation.” Although it encompasses all of the many forms of aggregated lawsuits, the Principles really focus on the most controversial one: The class action.

Intense Debate

The final draft approved at this year's Annual Meeting is markedly different and much improved from the first draft presented to the members on April 20, 2005. That draft, prepared by Professor Samuel Issacharoff, the Project's Reporter, and Associate Reporters Robert Klonoff, Richard Nagereda, and Charles Silver, ignited intense debate. It “introduce[d] the discomfort of all the Reporters ' with the current inquiry into predominance and superiority found in the current Federal Rules of Civil Procedure.” Indeed, the Reporters acknowledged that their draft “consciously breaks from existing law” and proposed to replace the current requirements of predominance and superiority with the vague considerations of “fidelity, finality, and feasibility.” Certification of “common issues” class actions, according to the initial draft, was “aspirational,” whether it would materially advance the resolution of the case or not.

Arguments and Motions

A firestorm of arguments and motions followed, and it hardly appeared that a consensus could ever be achieved, but it was. Predominance is back. So is superiority. (They're both in the Commentary and the Reporters' Notes). Although the Principles still promote certification of issues classes, that certification must “materially advance the resolution” of the litigation. Importantly, the Reporters' Commentary acknowledges that: “Experience with the class-action device suggests that aggregate treatment of common issues in personal-injury litigation is far less likely to advance materially the resolution of such claims ' .”

How and why that unanimous vote happened, and a description of the other key sections of the Principles will appear in this newsletter soon. There is much, much more to the Principles that every lawyer involved in class action practice ought to know about, including an entire section on the settlement of aggregate litigation.

Conclusion

There's one last point that everyone also needs to know. The Principles are not yet final, even though the members approved them. A special ALI subcommittee must still review the draft to make sure that all the changes that were supposed to be made are in fact made. (And there were some big changes that the Reporters said they would make.) The motion to adopt the Principles was conditioned on that review. As soon as that review is finished, this newsletter will provide a summary of all the important parts. Stay tuned.

Nicholas J. Wittner, a member of this newsletter's Board of Editors, is an assistant general counsel with the Nissan North America Legal Department. He is past Co-Chair of the ABA's Product Liability Committee, past Chair of the Product Liability Advisory Council and served on the ALI Members Consultative Group for this project.

On May 20 of this year, the members of the American Law Institute (ALI) unanimously approved a project that was five years in the making ' “Principles of Aggregate Litigation.” Although it encompasses all of the many forms of aggregated lawsuits, the Principles really focus on the most controversial one: The class action.

Intense Debate

The final draft approved at this year's Annual Meeting is markedly different and much improved from the first draft presented to the members on April 20, 2005. That draft, prepared by Professor Samuel Issacharoff, the Project's Reporter, and Associate Reporters Robert Klonoff, Richard Nagereda, and Charles Silver, ignited intense debate. It “introduce[d] the discomfort of all the Reporters ' with the current inquiry into predominance and superiority found in the current Federal Rules of Civil Procedure.” Indeed, the Reporters acknowledged that their draft “consciously breaks from existing law” and proposed to replace the current requirements of predominance and superiority with the vague considerations of “fidelity, finality, and feasibility.” Certification of “common issues” class actions, according to the initial draft, was “aspirational,” whether it would materially advance the resolution of the case or not.

Arguments and Motions

A firestorm of arguments and motions followed, and it hardly appeared that a consensus could ever be achieved, but it was. Predominance is back. So is superiority. (They're both in the Commentary and the Reporters' Notes). Although the Principles still promote certification of issues classes, that certification must “materially advance the resolution” of the litigation. Importantly, the Reporters' Commentary acknowledges that: “Experience with the class-action device suggests that aggregate treatment of common issues in personal-injury litigation is far less likely to advance materially the resolution of such claims ' .”

How and why that unanimous vote happened, and a description of the other key sections of the Principles will appear in this newsletter soon. There is much, much more to the Principles that every lawyer involved in class action practice ought to know about, including an entire section on the settlement of aggregate litigation.

Conclusion

There's one last point that everyone also needs to know. The Principles are not yet final, even though the members approved them. A special ALI subcommittee must still review the draft to make sure that all the changes that were supposed to be made are in fact made. (And there were some big changes that the Reporters said they would make.) The motion to adopt the Principles was conditioned on that review. As soon as that review is finished, this newsletter will provide a summary of all the important parts. Stay tuned.

Nicholas J. Wittner, a member of this newsletter's Board of Editors, is an assistant general counsel with the Nissan North America Legal Department. He is past Co-Chair of the ABA's Product Liability Committee, past Chair of the Product Liability Advisory Council and served on the ALI Members Consultative Group for this project.