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Posts Tagged ‘class action history’

While doing some research today on another issue, I came across this news clipping from the May 3, 1973 issue of the St. Petersberg Times discussing a federal court of appeals decision in a class action decided a few days before. 

The article begins:

NEW YORK – A three-judge panel of the U.S. Court of Appeals ruled here Monday that a person who files a class-action suit must pay the cost of notifying each person on behalf of whom the suit was brought – even if that means notifying millions of people.

The decision, handed down by Judges Harold R. Medina, J. Edward Lumbard and Paul R. Hays, could, if it stands, bring an end to mass class-action lawsuits.

The decision, Eisen v. Carlisle & Jaquelin, 479 F.2d 1005 (2d Cir. 1973), ultimately did stand.  The United States Supreme Court, in Eisen v. Carlisle & Jaquelin, 417 U.S. 156 (1974), agreed with the Second Circuit panel’s holding that the plaintiff must be required to bear the cost of class notice.  However, in reaching that conclusion the Court created a rule that would for decades become a key argument by plaintiffs in support of certification in class actions: that it is improper for a trial court to consider the merits of the plaintiff’s claims in evaluating class certification.  See Generally Geoffrey P. Miller, Review of the Merits in Class Action Certification, 33 Hofstra L. Rev. 51 (2004).  In this way, the decision, in an odd way, actually contributed to the explosion of class actions between the late 1970s and early 2000s.  Several key recent federal decisions, including In re IPO Securities Litigation, 471 F.3d 24 (2d Cir. 2006) and In re Hydrogen Peroxide Antitrust Litigation, 552 F.3d 305  (3d Cir. 2008), reflect an erosion of what was previously considered by many authorities to be a hard-and-fast rule preventing any consideration of the merits at the class certification stage.  This interpretation had caused many courts to gloss over practical problems posed by certification of cases in which certification was only arguably appropriate if one accepted the plaintiff’s bare allegations on issues of fact.

So, aside from perhaps marking the end of the use of a hyphen between “class” and “action,” the Second Circuit’s decision in 1973 did not mark the end of anything.

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If you are new to class action law or even if you are a seasoned class action practitioner, you may be curious about the origins and history of class actions.  Below you will find a sampling of articles available on the Internet that trace the history of class actions from medieval England to the 1966 amendment to Rule 23, Federal Rules of Civil Procedure and beyond.  This list is by no means exhaustive, but I tried to pick out articles available online that focus on or at least include a section dedicated to the history of class actions.

Articles on the History of U.S. Class Action law

This 2002 article by Susan T. Spence provides a “short history of class action law”:

http://www.abanet.org/buslaw/blt/2002-07-08/spence.html

This excerpt from a Rand Corporation publication entitled Class Action Dilemmas traces the “Historical Roots” of class actions:

http://www.rand.org/pubs/monograph_reports/MR969/MR969.ch2.pdf 

(for a link to all the book’s chapters and information on how to purchase the book, see here)

This article by Mark B. Seiger and Christopher W. Healy contains a short section on the history and development of class action law in the U.S.

http://findarticles.com/p/articles/mi_qa5332/is_200602/ai_n21409174

(See here for a link to a full reprint of the same article).

This law review article authored by Professor Debra Lyn Bassett discusses the history of class actions in the U.S. and the development of the “representative” and “aggregate” facets to class actions:

http://lawreview.byu.edu/archives/2006/6/1BASSETT.FIN.pdf

See the outline entitled Sidebar following this article by Professor Edward F. Sherman, which outlines key changes in U.S. class action law since the 1960s:

http://www.abajournal.com/magazine/decline_fall/

This article by Michael R. Mattioli discusses the history of the right to opt out of class actions and other lawsuits:

http://www.vjolt.net/vol12/issue2/v12i2_a1-Mattioli.pdf

This Legal History Blog entry provides an abstract of an article by Professor Stephen B. Burbank setting the Class Action Fairness Act (CAFA) in a historical context:

http://legalhistoryblog.blogspot.com/2008/01/burbank-on-class-action-fairness-act-of.html

Articles on the History of Class Actions Outside the United States

See this link for a very thorough review of the development of class action law in Quebec, Canada beginning with its origins in England:

http://www.tribunaux.qc.ca/mjq_en/c-appel/clerkship/class_actions.pdf

This one provides a history of class actions in Brazil:

http://www.temple.edu/iilpp/images/PDFs/GidiClassActions.pdf

While this one provides a more recent history of class actions in Australia:

http://www.lawyersweekly.com.au/articles/Are-we-becoming-more-American-Class-action-litigation-Australia-v-the-US_z65737.htm

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