Notre Dame Law Review Publishes a Report Examining Forum Choice in Class Actions

The Notre Dame Law Review has just published a report by Thomas E. Willging, Senior Researcher at the Federal Judicial Center (FJC), and Shannon R. Wheatman, Notice Director of Hilsoft Notifications and former FJC research associate, entitled Attorney Choice of Forum in Class Action Litigation: What Difference Does It Make?, 81 Notre Dame L. Rev. 591 (2006), which discusses the factors that influence forum selection and the impact of that selection on the case outcomes. Here’s an excerpt from the introduction:

Rather than rely on assumptions, we sought to answer some of the following empirical questions about the pre-CAFA class action litigation process:

• What factors influence plaintiff attorneys' choice of forum for filing a class action?
• What factors influence defendant attorneys' choice of forum for defending a class action?
• How different are judicial rulings on class certification and other procedural matters in state and federal forums?
• How different are the case outcomes--mostly in the form of dismissals or settlements--in state and federal forums?
• To the extent that both sides to the litigation base their forum-selection decisions on expectations of favorable legal rules or judicial predispositions, how accurate do their perceptions prove to be?

. . .

. . . This report presents empirical data and analysis relevant to the above questions. Overall, our data lend support to the conventional wisdom that attorney choice of forum is influenced by attorneys' perceptions of how the state and federal forums are likely to treat their cases, both as to class certification and settlement review. But, our data also show that attorneys considered more than the perceived attitudes of judges. Attorneys also factored in the underlying substantive and procedural law to be applied in state and federal court as well as local factors, such as the number of class members residing in the forum state and the local origin of the facts underlying the complaint.

Our data, however, lend little support to the view that state and federal courts differ greatly in how they resolve class actions. For example, state and federal courts were equally unlikely to certify cases filed as class actions. Both state and federal courts certified classes in fewer than one in four cases filed as class actions. Although state courts approved settlements awarding more money to the class than did federal courts, that difference was a product of the size of the class; individual class members on average were awarded more from settlements in federal courts than in state courts.