Choice of Law and Class Actions

The Shady Grove case got me thinking about uniformity (or lack thereof) in class action law across the circuits and reminded me that in the MTBE Products Liability Litigation, Judge Scheindlin (SDNY) held that the interpretation of the requirements of Rule 23 of the Fourth Circuit (the transferor court) not the Second Circuit (the transferee court), would apply to that Multi-District Litigation.  She wrote:

The requirements of class certification are inherently enmeshed with considerations of the trial, and under Lexecon the authority of the transferee court inmulti-district proceedings ends once the pretrial proceedings arecompleted. “It would be neither just nor efficient to apply the law ofthis Circuit in considering class certification, and then force thetransferor court to try a class action that it might never havecertified.” ^FN42Moreover, “[n]either party should be prejudiced in preparing for trialbecause the case was removed and transferred to another district in adifferent circuit.” ^FN43 “Thus, in considering a motion for class certification of state claims under Rule 23,the law of the transferor circuit controls because that is the law thatwill bind the trial court and class certification is an issue on whichthe Supreme Court has directed courts to ensure that the requirementsof Rule 23 are satisfied for purposes of trial.”

In re MTBE Products Liability Litigation, 241 F.R.D. 185, 193 (2007). 

ADL