Abandoning the Federal Class Action Ship: Is There Smoother Sailing for Class Actions in Gulf Waters?


Linda S Mullenix

74 Tulane Law Review 1709


Since 1995, federal courts have articulated an increasingly conservative class action jurisprudence that has directed federal courts to stringently scrutinize proposed litigation and settlement classes. Consequently, it has become increasingly difficult for plaintiffs to pursue certain types of class actions in the federal arena. In turn, many class counsel have abandoned the federal courts in favor of what are perceived to be more receptive state court forums. Against this backdrop, the Gulf States have earned the reputation as “magnet forums” for class action litigation.

This Article examines whether this stereotype is deserved and the extent to which the conservative federal class action jurisprudence since 1995 has “trickled down” to the Gulf State courts. It concludes that the federal jurisprudence has had no effect in Mississippi, and that Florida remains a substantially pro-plaintiff class action forum. In contrast, the Alabama, Louisiana, and Texas Supreme Courts, within the last eighteen months, have engaged in a substantial rethinking and retrenchment of their state class action jurisprudence. The high courts in these states now have recognized and applied this conservative federal jurisprudence, and it remains to be seen whether the Gulf State trial courts will now slow the pace of class certification and settlement approvals.

While there has been concern, voiced initially by academics, and more recently by business interests, over the increasing utilization of state courts for the litigation and settlement of products liability class actions, the experience of those involved in actual cases has been that the near universal utilization and application of Federal Rule 23 provisions and principles by state courts, and the adoption and adaptation of the extensive body of federal class action jurisprudence to state substantive law and local practice, should result in equivalent standards, familiar practice and procedures, and due process sufficient to allay most genuine concerns.

In light of this survey of class action decisions in the Gulf States, one may draw certain tentative conclusions about the impact of post-1995 federal class action jurisprudence on the Gulf States and the extent to which here has been a trickle-down effect of federal jurisprudence into state class action practice. The federal decisions, of course, have had negligible impact in Mississippi, the last state class action holdout. As the analysis above suggests, the post-1995 conservative federal class action jurisprudence has had the greatest impact in Louisiana and Alabama, at least in terms of fostering a less-than-inviting forum.

These state courts have read the federal decisions restrictively to overturn or repudiate class certifications that would have been approved prior to the great federal class action backlash.The Florida courts, on the other hand, have remained rather unscathed and unimpressed with the conservative federal jurisprudence. Florida, then, remains a favorable forum for plaintiffs seeking a safe harbor from chilly federal class action waters. Finally, Texas remains a complex and as yet undetermined state forum. In the main, the Texas trial courts have hewed to the state's liberal class certification model, resolutely distinguishing away the Castano decision and holdings.

Nor, until recently, have any of the United States Supreme Court's other class actions decisions, the Fifth Circuit's decision in Allison, or the entire litany of post-1995 federal cases made significant inroads on the Texas courts' propensity to certify class actions. Texas is still an open case, however. The three Texas Supreme Court decisions decided in spring 2000 have signaled a new, cautious approach to class certification decisions. The Texas Supreme Court seems to have veered in a conservative direction, similar to the state high courts in Alabama and Louisiana.Whether one views these trends as positive or negative, of course, is informed by one's litigation perspective.

The trickle-down effect of federal class action jurisprudence has been slow, but it has seeped down into the state courts. Plaintiffs, then, will find a hospitable state class action forum in Florida. Defendants may find some class action cheer now in Alabama and Louisiana. We must await the impact of the three new Texas class action decisions on Texas trial court's certification decisions. But we simply cannot know how lasting these trends will be, or when any of the Gulf States, or indeed the federal courts, may reverse course. The only eternal verity is that class action lawyers will figure it all out and forum shop accordingly.

Full Citation

Linda S. Mullenix, Abandoning the Federal Class Action Ship: Is There Smoother Sailing for Class Actions in Gulf Waters?, 74 Tulane Law Review 1709 (2000).