The Class Abides: Class Actions and the Roberts Court

This Article does not delve deeply into the substantive issues of Wal-Mart, Concepcion, or Italian Colors...My focus is on how Rule 23 has fared, structurally and practically, in the aftermath of the “common answer” formulation of Wal-Mart; three other decisions of the Roberts Court, Dukes, Amgen, and Comcast; and three cases that the Roberts Court did not ultimately take in the wake of Amgen and Comcast: its denials of review in Whirlpool, Butler, and Deepwater. Also discussed is the newly intense debate on the use of cy pres, catalyzed by Chief Justice Roberts’ extraordinary “Statement” accompanying the denial of certiorari in Marek v. Lane. This Article’s brief Wal-Mart discussion focuses on the case as an instance—perhaps anomalous—of the Court’s indifference to the structural constraints of Rule 23 itself in transporting the requirement for predominance of common issues from Rule 23(b)(3) to Rule 23(b)(2). This structural disruption at once dismayed employment rights advocates and, intentionally or not, provided a practical tool for the design and trial of class cases by plaintiffs

Human Rights Violations as Mass Torts: Compensation as a Proxy for Justice in the United States Civil Litigation System

On July 26, 2000, final approval was granted to a landmark $1.25 billion settlement of the claims of an international class of Holocaust victims against Swiss Banks that engaged in massive looting and misappropriation of assets entrusted to them by hundreds of thousands of Jews and other groups imprisoned, murdered, and dislocated by the Nazi regime. The Swiss Banks complaints linked the actions of Swiss financial institutions to the Nazi regime and its program of genocide. The Swiss Banks litigation was brought and settled under federal class action rules in the United States District Court for the Eastern District of New York. The class action was brought on behalf of five plaintiff classes, whose members resided in over fifty countries and spoke over thirty languages. Most of the court-appointed class counsel either served without fee in the five-year prosecution and settlement of the litigation or donated their court-awarded fees to international human rights endeavors. On December 5, 2000, a second court, the United States District Court for the District of New Jersey, approved an international diplomatic/legal agreement creating a foundation titled Remembrance, Responsibility and the Future, (the Foundation ), funded with DM$10 Billion (approximately $5 billion U.S.D.). The funding for the Foundation was contributed in equal shares by the German government and German industry, to compensate those who worked as slave or forced laborers for the Nazi regime in German factories, were subjected to medical experimentation, were held in Kinderheims (children\u27s homes) or whose property or assets were misappropriated. Again, this litigation was brought, and its claims were settled, on behalf of an international class of Holocaust victims, survivors, and their families. A small set-aside fund paid notices, administrative costs, and all attorneys\u27 fees