The American Class Action Fairness Act and Forum Shopping American-Style
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The American Class Action Fairness Act and Forum Shopping American-Style* Linda S. Mullenix Morris and Rita Atlas Chair in Advocacy, University of Texas School of Law, 727 East Dean Keeton Street, Austin, TX 78705, U.S.A. E-mail: [email protected]
This paper looks at the practice of forum shopping in the United States and focuses on the new Class Action Fairness Act which was passed in 2005 and is one of the most sweeping legislative initiatives relating to class action litigation. The Geneva Papers (2006) 31, 357–375. doi:10.1057/palgrave.gpp.2510081 Keywords: forum shopping; United States; liability regimes; Class Action Fairness Act
Introduction: continental reflections on forum shopping Professor Harald Koch, in his paper entitled ‘‘International Forum Shopping and Transational Lawsuits’’ (published in this issue), has accurately described the twin rationales for forum shopping by continental lawyers. He makes the dual points that forum shopping embodies both good lawyering as well as averting legal malpractice. In his view, which I believe is correct, an attorney who does not take forum attributes into account in pursuing litigation is acting in a fashion that is tantamount to malpractice. In short, all good lawyers forum shop. Professor Koch also has accurately articulated a compelling list of why continental lawyers might seek to forum shop by selecting a forum in the United States. He points out the various advantages of litigation in the American legal system: (1) varying advantageous substantive law; (2) the availability of jury trials; (3) contingency fee arrangements permitting recovery of large attorney fee awards; (4) no fee shifting for legal costs and expenses; (5) liberal discovery rules; and (6) the availability of punitive damages. Professor Koch further points out that the possibility of forum shopping is largely a plaintiff-favouring strategy, because plaintiffs always have the initial choice of forum, and defendants typically must suffer the plaintiff’s choice of forum. I agree with all of Professor Koch’s arguments and points, and would like to expand on his observations. In the United States, forum shopping also is an attribute of good lawyering, and the failure to take into account forum advantages and disadvantages
*Portions of this article have appeared in Mullenix, CAFA Proof Burdens, Nat’l L.J. 12 (December 19–26, 2005; Mullenix, CAFA and Retroactivity, Nat’l L.J. 12 (October 17, 2005); Mullenix, Class Actions: Fairness Act’s Effect on Mass Torts, N.Y.L.J. (March 31, 2005) (with Paul Rheingold); Mullenix, Impact of the Class Action Fairness Law, N.Y.L.J. 5 (March 3, 2005) (with Paul D. Rheingold).
The Geneva Papers on Risk and Insurance — Issues and Practice
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also might be tantamount to malpractice in certain circumstances. Practicing attorneys do forum shop all the time. Forum shopping in the United States, however, involves far more nuanced and sophisticated gamesmanship than continental lawyers might appreciate. In the United States, forum shopping is the consequence o
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