AGGREGATE LITIGATION IN STATE COURTS: PRESERVING VITAL MECHANISMS 2019 FORUM FOR STATE APPELLATE COURT JUDGES FORUM ENDOWED BY HABUSH HABUSH & ROTTIER S.C. AGGREGATE LITIGATION IN STATE COURTS: PRESERVING VITAL MECHANISMS 2019 FORUM FOR STATE APPELLATE COURT JUDGES When quoting or reprinting any part of this report, credit should be given to the Pound Civil Justice Institute. Permission to reprint a paper should be requested from: Pound Civil Justice Institute 777 Sixth Street, NW, Suite 200 Washington, D.C. 20001 www.poundinstitute.org [email protected] The Endower, Habush Habush & Rottier S.C., and the Forum underwriters have no control over the content of the Forum, the makeup of faculty or attendees, the placement of information in Forum materials, or the editorial content of the 2019 Forum Report. Library of Congress Control Number: 2020900843 ISBN: 978-0-933067-29-5 ©2020 Pound Civil Justice Institute “One of the primary motivations behind aggregate or class litigation is to promote fairness. If plaintiffs are bringing a claim against a giant behemoth corporation to right a $10 wrong, that just won’t happen unless we allow aggregate or class certification.” —A judge attending the 2019 Forum “I think states’ rights is an important issue here. Where I am from, we elect our judges. The people are saying, ‘This is the court where I want to be.’ And then a ‘higher power,’ so to speak, says, ‘No, over there is where you are going to go.’ It seems a slap in the face of states’ rights.” —A judge attending the 2019 Forum Table of Contents FOREWORD .......................................................................................................................................................... 1 INTRODUCTION .................................................................................................................................................. 3 MORNING PAPER, ORAL REMARKS, AND COMMENTS ............................................................................ 5 "Federal Trends Affecting Aggregate Litigation in the State Courts" ............................................................5 Professor D. Theodore Rave, University of Houston Law Center Oral Remarks of Professor Rave ..................................................................................................................27 Comments by Panelists, Response by Professor Rave, Comments from the Floor ....................................32 LUNCHEON KEYNOTE ADDRESS ................................................................................................................. 47 “Serial Objectors: A Challenge for Our Civil Justice System” ....................................................................47 Professor Robert Klonoff, Lewis & Clark Law School AFTERNOON PAPER, ORAL REMARKS, AND COMMENTS ..................................................................... 55 "Rethinking Multijurisdictional Coordination of Complex Mass Torts" .....................................................55 Professor Myriam Gilles, Cardozo Law School, Yeshiva University Comments by Panelists, Response by Professor Gilles, Comments from the Floor ....................................79 CLOSING PLENARY .......................................................................................................................................... 95 THE JUDGES’ COMMENTS ............................................................................................................................. 97 POINTS OF CONVERGENCE ........................................................................................................................ 121 APPENDICES .................................................................................................................................................... 125 Faculty Biographies ....................................................................................................................................125 2019 Judicial Participants ..........................................................................................................................132 2019 Forum Underwriters ..........................................................................................................................135 About the Pound Civil Justice Institute ......................................................................................................136 Pound Civil Justice Institute Officers and Trustees, 2019-2020 ................................................................137 Papers of the Pound Civil Justice Institute .................................................................................................138 AGGREGATE LITIGATION IN STATE COURTS i Foreword The topic of aggregate litigation in the state courts brought together a diverse group of judges, attorneys, and legal scholars for the Pound Civil Justice Institute’s twenty-seventh Forum for State Appellate Court Judges on July 27, 2019, in San Diego, California. Participants mulled over key issues with aggregate lawsuits, including the impact of recent federal legislation and court rules and the several types of aggregate litigation available to litigants in state courts. Feedback forms told us that the audience found it stimulating and enjoyable, in keeping with our past forums. The Pound Institute recognizes that state courts are the main dispensers of justice in the United States, and that they shoulder, by far, the heaviest of our judicial workloads. We try to support them in their work by offering our annual Forums as a venue where appellate judges, academics, and practitioners can have a relevant, focused dialogue in a single day. These discussions sometimes lead to consensus, but even when they do not, the exercise always bears fruit. Forum participants bring different points of view with them, and we work hard to include panelists with outlooks that differ from those of most of the Institute’s Fellows. That diversity of viewpoints emerges in our Forum reports, like this one you now hold in your hands. Our Forums for State Appellate Court Judges have been devoted to many cutting-edge topics, ranging from the court-funding crisis to the decline of jury trial, to separation of powers, rulemaking, forced arbitration, judicial transparency, and state constitutionalism. We are proud of our Forums, and are gratified by the growth in attendance we have experienced since their inception, as well as by the very positive comments we have received from judges and faculty members who have participated. A full listing of our prior Forums is provided in an appendix to this report, and their reports and research papers—along with most of our other publications—are available for free download on our website: www.poundinstitute.org. The Pound Institute is indebted to many people for the success of the 2019 Forum for State Appellate Court Judges: • Professors Theodore Rave and Myriam Gilles, who wrote and presented the papers that sparked our discussions; • Hon. Patricia Guerrero, of the California Court of Appeal, who welcomed us to San Diego; • Our lunch keynote speaker, Professor Robert Klonoff of the Lewis & Clark Law School, for a fascinating discussion of serial objectors in class actions; • Our panelists―Professors Adam Zimmerman and Nora Engstrom, Hon. Brent Appel and Hon. Joseph Maltese, Philip Willman, James Bruen, Eric Gibbs, and Ellen Relkin; • The moderators of our small-group discussions—David Arbogast, Linda Atkinson, Lauren Barnes, Leslie Brueckner, Kathryn Clarke, Andre Mura, Florence Murray, Rebecca Phillips, Ben Siminou, Gerson Smoger, Alinor Sterling, John Vail, and Peggy Wedgworth; and AGGREGATE LITIGATION IN STATE COURTS 1 • The Pound Civil Justice Institute’s dedicated and talented staff—Mary Collishaw, our executive director, and Jim Rooks, our Forum reporter—for their diligence and professionalism in organizing and administering the 2019 Judges Forum. Most of all, we appreciate the participation of the distinguished group of judges who took time from their busy schedules so that we might all learn from each other. We hope you enjoy reading this report of the Forum, and that you will find it useful in your consideration of matters relating to aggregate litigation. Patrick A. Malone President, Pound Civil Justice Institute, 2018-19 2 AGGREGATE LITIGATION IN STATE COURTS Introduction On July 27, 2019 in San Diego, California, 122 judges, representing 30 states, took part in the Pound Civil Justice Institute’s twenty-seventh annual Forum for State Appellate Court Judges. The judges examined the topic “Aggregate Litigation in State Courts: Preserving Vital Mechanisms.” Their deliberations were based on original papers written for the Forum by Professor Theodore Rave of the University of Houston Law Center (“Federal Trends Affecting Aggregate Litigation in the State Courts”), and Professor Myriam Gilles of Cardozo Law School (“Rethinking Multijurisdictional Coordination of Complex Mass Torts”). The papers were distributed to participants in advance of the meeting, and the authors made less-formal oral presentations of their papers to the judges during the plenary sessions. The paper presentations were followed by discussion by panels of distinguished commentators: Hon. Brent Appel of the Supreme Court of Iowa; Hon. Joseph Maltese of the New York State Supreme Court, Appellate Division, Second Department; Professor Adam Zimmerman of Loyola Law School, Los Angeles; Professor Nora Engstrom of Stanford Law School; Philip Willman, President-Elect