Creative judging has its merits but can also exact a huge price. One of the mechanisms courts have used, sometimes with bludgeon-like effect, first to “consolidate” and then rid themselves of so-called “mass tort” litigation is the class action. In federal courts the class action device is governed by Rule 23 of the Federal Rules of Civil Procedure, which also has various analogues in state law practice. Usually, several named plaintiffs file a lawsuit on behalf of themselves and other purported but unnamed members of a class seeking money damages or other relief based on traditional legal theories.
Attorneys filing class actions, for the most part specialists in this genre of litigation, frequently are involved in a “race to the courthouse.” The predominant reason for this race is that attorneys for litigants who successfully persuade a court to certify the broadest possible class effectively will control the litigation and thereby call the shots with respect to the nature and extent of recoveries, if any, including settlements.
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