The Defensive Use of Federal Class Actions in Mass Torts

The defensive use of federal class actions in mass torts is currently having its
fifteen minutes of fame. Defendants have historically used federal class actions to
resolve their litigation problems in the context of securities, financial, commercial,
employment, and other types of cases.’ They have long been successful in obtaining
finality, predictability, and a cessation of financial and public relations bleeding by
agreeing to class action settlements to disputes. Class actions in the mass tort
context, however, are relatively new phenomena. The comments to Rule 23 of the
Federal Rules of Civil Procedure in particular do not encourage the use of class
actions in mass torts either to try or to settle cases because of the perceived
individuality of each plaintiff’s case and the manageability problems generated by
that uniqueness.2 In the 1980’s, however, the increasing use of multidistrict
litigation led some judges to focus on the similarities among mass tort claims and
to promote the use of class actions for trial or settlement purposes. Indeed, there
developed a cottage industry of suggestions for various forms of aggregative
treatment of mass torts from scholars, judges, the American Bar Association,’ the
American Law Institute, and others.’ Then plaintiffs’ counsel began to perceive
certain advantages for themselves and their clients, and proposed class actions in a
host of contexts, some quite innovative.’