Should Mississippi Adopt a Class Action Rule--Balancing the Equities: Ten Considerations That Mississippi Rulemakers Ought to Take into Account in Evaluating Whether to Adopt a State Class Action Rule

Abstract

As is well-known, at least to state class action aficionados, Mississippi is the only state in the Union that currently does not have a class-action rule. All forty-nine other states, even including the District of Columbia ― which is not even a state ― have class-action rules.

Mississippi decisional law regarding class-action litigation reflects a lengthy struggle to accommodate the competing needs of an expanding modern, industrial society ― with concomitant large-scale legal problems ― with a judicial code that expressly omits a procedural mechanism for resolving aggregate claims on a classwide basis.Hence, the Mississippi decisional law reflects a longstanding judicial schizophrenia: on the one hand, Mississippi courts insist that the rules of procedure do not provide for legal class actions; on the other hand, Mississippi courts permit equitable class actions, or pseudo-class actions, by way of permissive joinder.

In spring 2004, the Mississippi Supreme Court ended this judicial confusion by declaring definitively that, in absence of a formal class-action rule, Mississippi does not permit class actions at law, in equity, or by permissive joinder. Thus, in solving one longstanding crisis, the Mississippi Supreme Court inspired another.

The Mississippi Supreme Court's declaration to the effect that Mississippi courts cannot entertain class actions has thus engendered the debate whether Mississippi should now finally enact a formal class-action rule. Proponents for the enactment of a class action-rule, including participants of this symposium and others, easily can outline the arguments in support of promulgating and adopting a formal class-action rule.

Perhaps, first and foremost, the adoption of a formal class-action rule would eliminate the backdoor bootstrapping of pseudo-class actions through liberal application of the Mississippi joinder rules. This innovative use of the Mississippi joinder rules has become the flashpoint for controversy over aggregate litigation in Mississippi state courts.In addition, the Mississippi rulemakers, cognizant of the expansion of Mississippi joinder rules to permit pseudo-class actions, have amended the joinder rules to make it more difficult to apply those rules in a fashion that would permit joinder of hundreds of parties and claims.

This rule reform is part of a larger Mississippi 2004 legislative tort-reform initiative, which has restricted punitive damage awards, as well as modified various Mississippi venue provisions to restrict forum shopping among Mississippi county courts. Taken together, these legislative initiatives are intended to curb abusive litigation and to restrain Mississippi from continuing as a magnet forum for certain types of nationwide exploitative litigation.

Against this backdrop of tort reform initiatives, class-action proponents suggest that such restrictions instead counsel strongly in favor of Mississippi adopting a formal class-action rule ― precisely to provide an appropriate vehicle for achieving classwide justice for Mississippi citizens injured as a consequence of living in modern, industrial society. Thus, what the tort reform initiatives have taken away needs to be counterbalanced by a class-action rule that will provide a formalistic mechanism for resolving large-scale grievances and injuries.

The arguments for Mississippi adopting a formal class-action rule and joining the rest of the Union seem compelling, if not irrefutable. It does seem odd, indeed, that Mississippi would remain a lone, quirky hold-out among the states in not providing a class-action rule for resolution of aggregate claims. In the extreme, the absence of a class-action rule might deny Mississippians the opportunity for equal justice provided seemingly to all other citizens of the United States.

If the Mississippi rulemakers are about to embark on a rulemaking process to consider whether to adopt a class-action rule, it would seem that a useful starting point would be to ask: What is the problem Mississippi is attempting to solve? Are the current aggregation rules ― particularly the Mississippi joinder and consolidation rules 20 and 42 ― not working? In what ways are those rules not working? Does Mississippi have a problem in search of a solution, or does it have a pre-determined solution (that is, enactment of a class-action rule) in search of a problem?