Comments on: Collective Actions http://www.civiljusticeblog.org/?p=169 Current issues in civil justice in the UK and around the World Fri, 09 Oct 2009 11:05:17 +0100 http://wordpress.org/?v=2.8.4 hourly 1 By: Richard Moorhead http://www.civiljusticeblog.org/?p=169&cpage=1#comment-61 Richard Moorhead Fri, 25 Sep 2009 13:46:25 +0000 http://www.civiljusticeblog.org/?p=169#comment-61 Steve, thanks for posting. What do you mean by negative value class actions: ones where the costs of claiming are greater than the compensation in issue? Would be interesting to hear some expansion of your reasoning. Best wishes Richard Steve, thanks for posting. What do you mean by negative value class actions: ones where the costs of claiming are greater than the compensation in issue? Would be interesting to hear some expansion of your reasoning.

Best wishes

Richard

]]> By: stephen b. burbank http://www.civiljusticeblog.org/?p=169&cpage=1#comment-58 stephen b. burbank Wed, 23 Sep 2009 18:45:48 +0000 http://www.civiljusticeblog.org/?p=169#comment-58 If you will permit comment from the U.S., I have long believed and argued that the introduction of the modern small claims (negative value) class action by means of a transsubstantive Federal Rule of Civil Procedure was a mistake. It has seemed to me that the risk of inefficient overenforcement is too great. That said, I favor having a presumptively applicable set of rules to govern the process (class certification, notice, opt-out if relevant, etc.) in those areas where class litigation is permitted. There is a very interesting case before the United States Supreme Court -- due to be argued in November -- that may cast a little light on these issues (although, given the Court's recent track record in procedure cases, it could just as easily turn out the lights) -- Shady Grove Orthopedic Associates, P.A. v. Allstate Insurance Co., No. 08-1008. The question is whether a federal district (first instance) court, exercising subject matter jurisdiction on the basis of diversity of citizenship, is bound to apply a provision of New York law that prohibits class actions in suits to collect statutory penalties. I hope and expect that the Court will affirm the decisions below requiring application of the state law and that its opinion, dismissing simplistice "procedure" and "substance" labels, will acknowledge the evident goal of the N.Y. legislature to prevent over-enforcement. Steve Burbank University of Pennsylvania If you will permit comment from the U.S., I have long believed and argued that the introduction of the modern small claims (negative value) class action by means of a transsubstantive Federal Rule of Civil Procedure was a mistake. It has seemed to me that the risk of inefficient overenforcement is too great. That said, I favor having a presumptively applicable set of rules to govern the process (class certification, notice, opt-out if relevant, etc.) in those areas where class litigation is permitted. There is a very interesting case before the United States Supreme Court — due to be argued in November — that may cast a little light on these issues (although, given the Court’s recent track record in procedure cases, it could just as easily turn out the lights) — Shady Grove Orthopedic Associates, P.A. v. Allstate Insurance Co., No. 08-1008. The question is whether a federal district (first instance) court, exercising subject matter jurisdiction on the basis of diversity of citizenship, is bound to apply a provision of New York law that prohibits class actions in suits to collect statutory penalties. I hope and expect that the Court will affirm the decisions below requiring application of the state law and that its opinion, dismissing simplistice “procedure” and “substance” labels, will acknowledge the evident goal of the N.Y. legislature to prevent over-enforcement.

Steve Burbank
University of Pennsylvania

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