On November 21, NJCJI hosted the third in a series of ongoing workshops focusing on issues in the courts that impact the business community. “The Future of Class Actions: A Panel Discussion” brought together five specialists in the field for a spirited examination of recent developments in the law and thoughts on the prospects of pending cases.
After introductions from the panel’s moderator, former New Jersey Supreme Court Justice Roberto Rivera-Soto, now a Partner at Ballard Spahr, LLP, Jessica D. Miller, a Partner at Skadden, Arps, Slate, Meagher & Flom, LLP, lead off with an overview of recent U.S. Supreme Court and Circuit Court cases.
Miller explained that the Class Action Fairness Act has had a noticeable impact on the willingness of federal courts to take up class actions and expressed unease with the fact that issues-based classes could become more common.
Much like at the federal level, New Jersey law, specifically that related to ascertainability, is in flux. Jeffrey J. Greenbaum, Chair of the Class Action Practice Group at Sills Cummis & Gross, P.C., presented attendees with a comparison of federal and New Jersey procedural rules, positing that while there is great similarity, slight differences have lead to relatively more suits allowed in New Jersey state courts. However, recent decisions could result in a tightening of the rules despite the textual differences.
Panelist Leigh Schachter, Assistant General Counsel – Litigation at Verizon, provided insight into the interaction between class actions and arbitration. Thanks to the supremacy of the Federal Arbitration Act, class actions are often not an option for some consumers. Unless a contract with an arbitration clause specifically provides for class actions, they are presumably not allowed.
As a practicing plaintiff’s attorney, Joe DePalma, a Partner at Lite DePalma Greenberg, LLC, sharply critiqued the previous panelists. DePalma lamented that from his perspective, the courts are writing FRCP 23 out of the books.
Closing out the session was Ted Frank, Founder of the Center for Class Action Fairness, who focused on recent class action awards that through cy pres have benefited charities rather than class members. He discussed some of the work he has done to attempt to focus courts on analyzing the fairness of the settlement to class members.
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