Class Actions and Mass Tort Litigation in a Global Context
Prof. Linda S. Mullenix
Human Rights Class Actions in American Courts, Part II
International Mass Tort Litigation
Human Rights Class Actions in American Courts
Academic Commentary: Kevin R. Johnson, International Human
Rights Class Actions: New Frontiers for Group Litigation, 2004 Mich. St. L. Rev. 643 (2004)
Margaret G. Perl, Not Just Another Mass Tort: Using Class Actions to Redress International Human Rights Violations, 88 Georgetown L.J. 773 (2000)
Human Rights Class Actions in American Courts
Questions: What are the views of Prof. Johnson and
Ms. Perl relating to the use of the class action rule for resolving international human rights violations?
What positive benefits do they discuss? What problems, if any, to implementing an
American-style class action rule for international human rights violations?
Human Rights Class Actions in American Courts
Prof. Johnson (theses): Views human rights litigation as emergence of
novel form of social justice litigation Discusses examples of Yugoslavia litigation,
Hilao, and Holocaust recovery litigation Forces that have expanded scope of litigation:
Growing use of class actions for social reform in the United States
Class action favorite tool for social reformers in the United States
Globalization of the international political economy
Human Rights Class Actions in American Courts
Prof. Johnson (theses): Class actions challenge notion that
litigation is only between private parties Class actions challenge concept of
national borders and state sovereignty Class actions that cross national borders
deserve greater scrutiny
Human Rights Class Actions in American Courts
Prof. Johnson (theses): Development of human rights class
actions in the U.S.: 1980 decision in Filartiga v. Pena-Irala Reinvigorated use of Alien Tort Claims Act Facilitated bringing civil actions in U.S.
courts for human rights abuses in other countries
Enactment of the Torture Victim Protection Act
Human Rights Class Actions in American Courts
Prof. Johnson (theses): New international human rights litigation is
natural and logical extension of “impact litigation” in the U.S.
Example: class litigation played unique role in immigration law through reforming misconduct by identifying a pattern and practice of illegal behavior
Immigration class actions share many characteristics with new international human rights class actions
Human Rights Class Actions in American Courts
Prof. Johnson (theses): Purposes of international human rights class
actions: Damages sought, but unlikely to be recovered However, class action may bring public attention to
human rights atrocities: “Indeed, unlike ordinary mass tort class actions,
monetary or injunctive relief may not even be expected – or the primary goal – in some cases.”
International human rights litigation may comprise part of a larger strategy for social change
Holocaust litigation spurred diplomatic settlement between German and U.S. governments
Human Rights Class Actions in American Courts
Prof. Johnson (theses):
“The motivation of the attorneys in international human rights class actions often differs from that of lawyers in mass tort class actions. Attorneys seeking social change are often motivated primarily by political goals, perhaps those of the organization they are affiliated with, as opposed to monetary compensation from a settlement.”
Human Rights Class Actions in American Courts
Prof. Johnson (theses): Difficulties of International Human Rights
Class Actions: Role of the attorney: actions are attorney-
driven and class actions may be pursued by attorneys with their own political agendas
Courts placed in a more political role than is usual
Human Rights Class Actions in American Courts
Prof. Johnson (theses): Examples of Bracero class litigation and Mexican
repatriation class litigation: Reflected new strategy to call attention to
problems Goal to build pressure on Congress for possible
political action (hope of reparations) Compensation only part of the reason for lawsuit This characterteistic separates human rights
litigation from “garden variety” mass tort cases seeking mega-damages
Human Rights Class Actions in American Courts
Margaret G. Perl, Not Just Another Mass Tort: Using Class Actions to Redress International Human Rights Violations, 88 Geo. L.J. 773 (2000)
Also comments on Hilao and Karadzic class actions
Article written before de-certification of the Karadzic class action
Also notes expanded use of human rights class actions resulting from Alien Tort Claims Act and Torture Victims Protection Act
Human Rights Class Actions in American Courts
Perl (theses): American federal courts should use more
liberal standards for class certification when presented with human rights cases
Human rights class actions should not be subjected to strict analysis applied to mass tort cases
Courts should take into account purposes of human rights litigation and lack of feasible alternatives for claimants
Human Rights Class Actions in American Courts
Perl (theses): Hilao and Karadzic cases demonstrates
more lenient approach to class certification than in conventional mass tort cases
Easy commonality found in Karadzic case: Questions revolved around acts of the
defendant Court satisfied all claims arose out of
“ethnic cleansing campaign”
Human Rights Class Actions in American Courts
Perl (theses): Typicality requirement also easily satisfied in
Hilao litigation Court satisfied that class representatives injuries
“virtually identical” to those of class – whether victim experienced pain and suffering from torture, execution, or disappearance
Appellate court did not find fault with lack of in-depth analysis on predominance and superiority requirements in Hilao
Court diverged on strict analysis of manageability required in other mass tort cases
Court approved elaborate three-phase trial plan with statistcial damages
Human Rights Class Actions in American Courts
Perl (conclusions):“There is no principled way to distinguish Marcos and Karadzic from the mass tort precedent to allow for a more lenient application of the Rule 23 requirements except to acknowledge that the substance of the claim matters to courts when crafting their Rule 23 analysis. ATCA and TVPA cases appear to be certified more readily than mass tort despite similar difficulties in meeting Rule 23’s requirements.”
Human Rights Class Actions in American Courts
Perl (conclusions):
“As the number of class actions based on international human rights violations increases in future years, courts should openly recognize the unique policy implications of these cases and resist the urge to treat them as harshly as current mass tort precedent would have them do. This is a principled exercise of judicial discretion under Rule 23 premised on the realization that class actions under the ATCA and TVPA are too distinct from mass tort to be subject to the same assumptions and analysis.”
Human Rights Class Actions in American Courts
Questions: At the time Perl wrote her article, the Karadzic
class action had been certified. The same court, however, subsequently de-certified the class action. Does that change Perl’s analysis and conclusions?
Do you agree with Perl that human rights class actions are different than mass tort class actions?
Should human rights class actions be subject to easier class certification? Why? Are you persuaded by Perl’s arguments for this position?
International Mass Tort Litigation: Two Case Studies
In re Ski Train Fire in Kaprun, AustriaIn re Factor VIII or Factor IX Concentrate Blood
Products Litigation
International Mass Tort Litigation
Questions: What is an international mass tort litigation? Are international mass tort cases different than
international human rights violations? Can and should American courts resolve
international mass tort litigation? Should international mass torts be handled
differently than domestic American mass tort cases? Should different standards apply to international
mass tort cases?
International Mass Tort Litigation
In re Ski Fire in Kaprun, Austria: Factual Basis:
Funicular train fire in tunnel near Kaprun, Austria, November 11, 2000
155 passengers and crew killed Victims:
92 Austrians 37 Germans 10 Japanese 8 Americans 4 Slovenians 2 Dutch 1 Britain, 1 Czech
International Mass Tort Litigation
In re Ski Fire in Kaprun, Austria: The Litigation:
American family members filed litigation in the U.S. Scattered litigation consolidated under MDL
procedures in federal court in New York Plaintiffs sought damages, declaratory, injunctive
relief Substantive legal allegations (claims):
Tunnels improperly designed, constructed, maintained
Negligent operation and promotion Fraudulent misrepresentation of safety Negligent infliction of emotional distress
International Mass Tort Litigation
In re Ski Fire in Kaprun, Austria: The Litigation:
The Defendants: Siemens Corporation, Siemens AG, and
multiple other German and Austrian corporate entities and holding companies
Manufacturers and operators of the train
International Mass Tort Litigation
In re Ski Fire in Kaprun, Austria: Procedural Basis:
Action brought in the court’s diversity jurisdiction American plaintiffs; foreign defendants
Sought class certification under Rule 23(b)(2) and Rule 23(b)(3)
Class definition: “on behalf of a class of heirs and representatives
of victims of the Kaprun tragedy who consent to be included as members of the class”
International Mass Tort Litigation
Questions: Do the facts of the Kaprun train fire present the
type of situation that should be handled through class action litigation?
What problems are presented by this proposed class action?
Should the court certify this class? Why? In what fashion should the court certify this class
action?
International Mass Tort Litigation
In re Ski Fire in Kaprun, Austria: Decision of the trial court judge (Judge
Scheindlin): Court certifies the class action for liability issues
only (not damage phase of trial) Proposed class satisfied adequacy requirements Proposed class satisfied predominance for a Rule
23(b)(3) damage class Class action superior to other forms of dispute
resolution Court orders an “opt-in” class
International Mass Tort Litigation
In re Ski Fire in Kaprun, Austria: Judge Scheindlin’s decision – Adequacy of Representation:
Defendants attack adequacy of class representatives (both class representative and class counsel)
Court holds class representative Habblett has standing under Texas law to bring suit as his daughter’s representative, and to represent class members
Habblett has sufficient knowledge of the case; appreciates responsibilities as class rep.
However, court refuses to permit Habblett to be sole class representative; conditions certification upon naming other class rep. and representative for foreign plaintiffs
International Mass Tort Litigation
In re Ski Fire in Kaprun, Austria: Judge Scheindlin’s decision – Adequacy of
Representation (class counsel): Detailed lengthy discussion of dispute among
class attorneys Class attorneys unwilling to work with one another Court canvasses and describes disputes Court orders class certification conditioned upon
one attorney being appointed to serve as liaison for foreign (non-American) class members
International Mass Tort Litigation
In re Ski Fire in Kaprun, Austria: Judge Scheindlin’s decision – Predominance of
Common Issues: Class treatment on fraud claim appropriate in this
case No variation in representations of safety nor in
plaintiffs’ reliance on those representations Same reasoning applies to Ps’ claims for
intentional infliction of emotional distress Only individualized issues relate to damages, not
to liability issues
International Mass Tort Litigation
In re Ski Fire in Kaprun, Austria: Judge Scheindlin’s decision – Superiority:
Court recognizes traditional reluctance to certify class actions for mass tort cases
However, court recognizes “recent” growing recognition that mass accident cases ought to be maintained as class action
Class action here would be not only appropriate but also beneficial:
Class action limited only to liability All members in same position re Ds: no
individualized defenses Little risk that Ps will want to pursue their own
claims
International Mass Tort Litigation
In re Ski Fire in Kaprun, Austria: Judge Scheindlin’s decision – Superiority:
“Because the individual class members do not have the wherewithal to individually litigate the defendants’ liability . . . the class action mechanism is the superior method for adjudicating the defendants’ liability.”
International Mass Tort Litigation
In re Ski Fire in Kaprun, Austria: Judge Scheindlin’s decision – Superiority:
“The non-American plaintiffs will be unable to bring their damages actions against the foreign defendants in the United States because there is no diversity jurisdiction over a foreign plaintiff suing a foreign defendant in the United States.”
“I recognize that class certification will allow many non-Americans to take advantage of this country’s legal system and its class action device, which is unavailable in many foreign jurisdictions.”
International Mass Tort Litigation
In re Ski Fire in Kaprun, Austria: Judge Scheindlin’s decision –Opt-In
requirement: Opt-in class is necessary in these
circumstances Class means that all plaintiffs waive their
right to sue Ds in foreign jurisdictions Would be unfair to include members in a
class that depends on waiver of a right Requirement to opt-in found in federal fair
Labor Standards Act class actions
International Mass Tort Litigation
Judge Scheindlin’s decision – Opt-In requirement:
No prior case law permitting opt-in requirement But, nothing in rule or case law precludes opt-in
requirement Judge’s authority to order opt-in procedure
derives from judge’s equitable powers Finally, no certification under Rule 23(b)(2) – no
additional benefit
International Mass Tort Litigation
Questions: Is Judge Scheindlin’s class certification of the
Kaprun fire victims a good decision? Was her decision a sound application of the class
action rule? What do you think about her decision to certify an
opt-in class? Why did she do this? Was Judge Scheindlin’s class certification
decision upheld on appeal? Is the appellate court’s decision sounder than
Judge Scheindlin’s? What are the implications of the appellate decision
for the class members and victims of the fire disaster?
International Mass Tort Litigation
Kern v. Siemens Corp., 393 Fd.3 120 (2d Cir. Dec. 2004)(Appellate Court Decision):
Defendants’ appeal of class certification – four challenges: Rule 23 does not permit opt-in provision “all heirs, beneficiaries and personal
representatives” is unmanageable class requriring individual inquiries
Question use of class action in mass accident Court erred in certifying class with fraud and
emotional distress claims (require individual determination)
International Mass Tort Litigation
Kern v. Siemens (2004): Court reverses class certification Only addresses opt-in provision Rule 23(c) does not permit class certification of
opt-out class during liability phase Language of Rule 23 does not provide or permit
opt-in procedure Substantial legal authority supports view that
providing for opt-out, Congress intended to prohibit opt-in procedure
Historical materials by Committee Reporter indicate consideration and rejection of opt-in procedure
International Mass Tort Litigation
Kern v. Siemens (2004): Rule 23(c) does not permit class certification of
opt-out class during liability phase: No federal court has certified opt-in procedure Would be contrary to interests of claimants in
small claims class actions Courts hesitant to require opt-in during liability
phase Opt-in type procedures (claims forms) possible
during damage phase Fair Labor Standards Act opt-in procedure
narrowly applies only to labor cases under statute No equitable powers of judge to authorize opt-in
procedure
International Mass Tort Litigation
Final Questions: Does the Second Circuit’s decision in Kern make
sense? Could the Kaprun Ski Fire case have been
certified as a class action if the judge had not provided for the controversial opt-in provision?
Is the Kaprun Ski Fire case the type of situation where an American court should take jurisdiction and resolve the mass accident through the class action litigation?
Given the large numbers of non-American victims, should this matter have been handled in a foreign forum, such as Austria?