Duane Morris Class Action Review - 2023 - Report - Page 330
CHAPTER 21
State Court Class Actions
I.
Executive Summary
The decision on where to file a class action will always be an important strategic
decision for plaintiff’s lawyers seeking to maximize their odds for class certification, as
well as larger verdicts and settlements. Whether it is between state or federal court, or
deciding in which particular to state to file, many factors impact this decision. Although
almost all state law procedural requirements for class certifications mirror Rule 23 of the
Federal Rules, the plaintiff’s bar often perceives state courts as having a more positive
predisposition toward their clients’ interests, particularly where putative class members
have connections to the state, and the events at issue occurred in the state where the
action is filed. Beyond forum shopping between state and federal court, the plaintiff’s
bar also seeks out individual states that are believed to be “plaintiff friendly” such as
California, Georgia, Florida, Illinois, Louisiana, Massachusetts, Missouri, New York,
New Jersey, Pennsylvania, Texas, and Washington, which are among the leading
states where plaintiffs’ lawyers file a volume of class actions. These courts are thought
to have more relaxed procedural rules related to discovery, consolidation, and class
certification, a lower bar for evidentiary standards, higher than average jury awards,
among other considerations, all of which incentivize forum-shopping related to state
class actions.
In reviewing key state court class action decisions and analyzing class certification
rulings, although state courts tend to apply a fairly typical Rule 23-like analysis, many
state decisions focus on the underlying claims at issue to address whether to allow a
class action to proceed or not. For example, in a number of the COVID-19 related state
class actions decided this year, the reasoning impacting class certification often
centered on the contracts or insurance policies at issue, and not necessarily on the
certification questions around numerosity, commonality, typicality, adequacy of
representation, predominance, and superiority. Similarly, in a number of securities fraud
related class action lawsuits, the key analysis often focused on whether plaintiff could
maintain the underlying securities claims, and not always on the class requirements.
Nonetheless, understanding how state courts apply their respective Rule 23 analyses
under applicable state procedural law is crucial toward effectively navigating the
complexities of these types of lawsuits.
Another important topic for companies is state private attorney general laws, in
particular, California’s controversial Private Attorneys General Act (PAGA). The PAGA
authorizes workers to file lawsuits to recover civil penalties on behalf of themselves,
other employees, and that State of California for state labor code violations. Addressing
the wave of PAGA lawsuits, the U.S. Supreme Court erected a hurdle with its ruling this
past year in Viking River Cruises where it held that PAGA actions are severable into
individual and non-individual claims, and that an employee with an arbitration
agreement must pursue his or her individual PAGA claim in arbitration rather than in
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© Duane Morris LLP 2023
Duane Morris Class Action Review – 2023
