Strategic Forum Selection and Parallel Litigation

54. Because of the two-layered US court system, it is common that various courts

at different levels simultaneously have jurisdiction over a similar case.96 Criteria used to establish jurisdiction are often elastic and let judges a discretionary margin of interpretation. As a result, the opportunity for “forum-shopping” in the United States is high. Moreover, because procedural and substantive laws are diverse, selecting the right forum is a fundamental strategic step.

Depending on the nature of a case, various fora could be available to attorneys and victims willing to bring a class action lawsuit. Because each conflict is unique, class counsels have to investigate which court could best match their case. In the following paragraphs, we examine some of the elements guiding attorneys’ choice of forum.97 _When

two or more state courts have jurisdiction to rule on a case, attorneys will usually look at the political environment, the presence of judges with particular expertise, the substantive state law in force, and other state specificities.98

94 _{S Bariatti, supra n 93, 324-325;Buschkin, supra n 93, 1579; R Mulheron, supra n 89, 197-210; A Pinna,} supra n 93, 56-59; M Requejo Isidro and M Otero Crespo, “Collective Redress in Spain: Recognition and Enforcement of Class Action Judgments and Class Settlements” in D Fairgrieve and E Lein (eds), Extraterritoriality and Collective Redress (Oxford University Press, 2012), 320-322, but see the recent enactement of Article 47 of the Law on International Cooperation in Civil Matters (Ley 29/2015, de 30 de julio, de cooperación jurídica internacional en materia civil) as well as the interesting comments of F Garcímartin, Reconocimiento en España de las class actions extranjeras: el nuevo artículo 47 LCJI, (04.09.2015) Almacén de Derecho, available at http://almacendederecho.org/reconocimiento-en-espana- de-las-class-actions-extranjeras-el-nuevo-articulo-47-lcji/ and F Gascón Inchausti, “Reconocimiento y ejecución de resoluciones judiciales extranjeras en la ley de cooperación jurídica internacional en materia civil” (2015) 7 (2) Cuadernos de Derecho Transnacional 169-170.

95 _{S Bariatti, supra n 93, 323-324; Buschkin, supra n 93, 1578-1579.}

96 _{GP Miller, “Overlapping Class Actions” (1996) 71 New York University Law Review 527.}

97 _{An interesting study shows that leading arguments influencing attorneys’ choice of a particular forum}

are: the predisposition of courts to rule in favour of a party; the source of law (state or federal) supporting class claims; and the connection of members to a certain State (TE Willing and SR Wheatmann, “Attorney Choice of Forum in Class Action Litigation: What Difference Does it Make?” [2006] 81 [2] Notre Dame Law Review 611-612).

98 _{For example, California is well known for its arsenal of provisions protecting consumers’ rights.}

Therefore, starting a class action lawsuit against a telecommunication company in this State could be a favourable forum, if available. Furthermore, class counsels could take advantages or avoid some important state specificities: for instance, Mississippi has no class action procedural rule; Illinois does not impose any superiority requirement for damages class actions; South Carolina does not allow negative value class actions; and in some States, the burden to pay costs of notice relies on defendant contrarily to federal rules.

55. This automatically generates questions regarding the emergence of parallel or

duplicative proceedings. First and foremost, it has to be underlined that no statute rules parallel litigation. Instead, US courts have developed rather flexible instruments that foster coordination and coherence. In such a context, class action proceedings may overlap in different scenarios.

56. In the first place, when different class actions are brought in federal courts,

relatively effective tools enable courts to coordinate them. The most obvious one is the centralisation of pre-trial issues in the MDL Panel in order to avoid inconsistencies and waste of resources.99 In the second place, federal judges might prefer to simply coordinate their proceedings.100 Finally, federal courts also have the power to enjoin the start of parallel and overlapping proceedings in other federal courts by issuing injunctions.101

57. However, when various class actions are pending in both, federal and state

courts, the injunction system is limited –federal courts can only preclude the filing of future actions in state courts.102 _{Instead, federal judges may decide to stay or dismiss the}

case.103 _{Alternatively, removal in federal courts is another potential instrument that}

fosters centralisation of actions and hence, limits the emergence of duplicative actions.104 As we explain below, thanks to the Class Action Fairness Act, removal is facilitated. Notably, evidence shows that federal and state judges sometimes use informal communication tools in order to coordinate their cases.105 Finally, state courts may decide

In case a plurality of federal courts have the competence to hear the case at stake, counsels will pay special attention to judicial predisposition and judges’ expertise. Sometimes, attorneys may have the choice to go to state or federal courts according to the nature of the case. Statistically, cases remain in state courts when: local judges show favourable predisposition towards the attorney’s client; claims are essentially based on state substantive law; and a large majority of claimants reside within the territory of a single State. On the contrary, counsels will be inclined to shift to federal courts if they identify a judicial predisposition towards their client, claimants come from various States, and claims trigger federal questions of law (Anderson and Trask, supra n 32, 76-82; Rowe, supra n 19, 101-126; Willing and Wheatmann, supra n 97, 612-613).

99 _{Manual for complex litigation (4th edn, 2004), para 20.13, 219-227, available at}

http://www.classactionlitigation.com/library/mcl4.pdf.

100 _{Ibid, para 20.14, 227-228.}

101 _{EF Sherman, “Class Actions and Duplicative Litigation” (1987) 62 (3) Indiana Law Journal 518-527.} 102 _{Ibid, para 20.32, 238;Miller, supra n 96, 531-532; Sherman, supra n 101, 528-533; CA Wright and AR}

Miller, Federal Practice & Procedure (Wright & Miller) (Thomson Reuters West, April 2017 update), para 4212, available on WestlawNext. The converse situation, whereby a state court would enjoin pending federal proceedings is unlikely to happen.

103 _{Manual for complex litigation, supra n 99, para 20.32, 238-239; Miller, supra n 96, 528-529.} 104 _{Miller, supra n 96, 530-531.}

to stay proceedings pending before them when a similar class action has started in a federal court.106

58. Lastly, pending class actions in different state courts is the most interesting

situation, as it triggers similar questions than the ones that could potentially appear between various EU Member States. Here, state courts may suspend proceedings when a sister-state court must rule on a similar case.107 Then, injunctions are also possible although this instrument seems to be relatively unfriendly, since it obliges out-of-state courts to refuse jurisdiction over a case.108

59. In all cases, US courts can always deny certification of a class when it overlaps

with a similar action pending in another court. This possibility is examined under the superiority requirement.109