As I noted in my post a few weeks ago for the SCOTUSBlog class action symposium, one issue to which I’m paying particularly close attention these days, particularly in the wake of the Supreme Court’s recent decisions in Shady Grove, Concepcion, Bayer and Dukes, is whether the state court class certification standards begin to diverge from increasingly more exacting federal standards.
A recent article in the Wisconsin Lawyer caught my eye as a case in point for the potential divergence of state and federal class action standards. A Call to Reform Wisconsin’s Class-Action Statute, authored by Paul Benson, Joe Olson & Ben Kaplan of the Milwaukee firm Michael Best, discusses the brief and arcane language of Wisconsin’s class action statute (Section 803.08 of the Wisconsin Statutes), which reads, in its entirety:
When the question before the court is one of a common or general interest of many persons or when the parties are very numerous and it may be impracticable to bring them all before the court, one or more may sue or defend for the benefit of the whole.
Benson, Olsen and Kaplan point out in their article that although the courts have generally looked to case law interpreting federal Rule 23 in deciding whether class certification is proper under the state rule, the broad statutory language leaves state trial courts with broad discretion in deciding what standards to apply in a particular case. This, they argue, leaves the state rule open to uncertainty of application, inconsistent decisions, and forum shopping. They propose that the state rule be reformed so that it more closely mirrors the federal rule.
It remains to be seen whether states like Wisconsin with ill-defined class action rules will become battleground for class action litigation, where plaintiffs can attempt to avoid the more rigorous standards now required in the federal courts. Even assuming that CAFA and other jurisdictional issues could be overcome, there could be a variety of practical reasons why plaintiffs’ lawyers would not want to pursue class action litigation in the Wisconsin courts. However, Wisconsin’s broadly-worded class action rule provides at least a possible inducement to pursue litigation there.
In other words, for potential class action defendants (and in observance of National Talk Like a Pirate Day), Ye maye want to considarrrr steerrrin’ clear o’ Wisconsin, me maties!