Practice Areas & Industries: Adams and Reese LLP

Practice/Industry Group Overview

Over two-thirds of all recent class actions filed in state courts against Fortune 500 companies were commenced in just five states: Alabama, California, Louisiana, Ohio and Texas. With offices in three of these states, Adams and Reese represents more class action defendants than many much larger firms. Indeed, we were involved in several watershed decisions, including the decertification of a national class action in Castano v. American Tobacco Co. that, to this day, defines the landscape of class action litigation.

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Our experience in class action litigation dates back as far as modern class action litigation itself. Although the class action has existed in some form for over 100 years, the modern class action arose in 1966, after Congress amended Rule 23 of the Federal Rules of Civil Procedure to make class actions more readily available, judicially efficient, and binding. Since then, class actions have become one of the most controversial aspects of litigation. A single judge's decision to certify a class action can make the difference between a routine case involving a few claimants, and an enormous, complex case in which defendants confront literally thousands, if not millions, of claimants. Similarly, class certification can transform a case with exposure in the thousands of dollars to one with exposure in the hundreds of millions, if not billions, of dollars.

When Congress amended Rule 23 in 1966, the Advisory Committee stated the rule was not intended for mass torts: "[a] 'mass accident' resulting in injuries to numerous persons is ordinarily not appropriate for a class action." Judicial activism, however, prevailed and some federal courts certified class actions in mass tort litigation -- a trend that exploded across the country in the 1980's with products liability and mass accident class actions.

By the mid-1990s, the class action pendulum began to swing back the other way. Federal appellate courts ruled in landmark decisions like Castano that "[i]n addition to skewing trial outcomes, class certification creates insurmountable pressure on defendants to settle, whereas individual trials would not . . .", and that for this and other reasons, class certification is particularly inappropriate for what the Court referred to as "immature torts." Similarly, in Matter of Rhone-Poulenc Rorer Inc., et al, the Seventh Circuit returned to the original intent of Congress and held that class actions are generally not appropriate "in mass-tort cases." The Court explained, "Those courts that have permitted it have been criticized, and alternatives have been suggested which recognize that a sample of trials makes more sense than entrusting the fate of an industry to a single jury."

While the number of class actions certified in federal court has diminished, the number in state court has increased as sophisticated plaintiffs' counsel increasingly "cherry-pick" favorable state court jurisdictions in which to file. Recently, the concern over this practice prompted the enactment of the Class Action Fairness Act ("CAFA"). While CAFA makes it easier for some class action suits to be heard in federal court, the grounds for federal jurisdiction are complicated and, in some cases, fact-intensive, and knowing how to argue for federal jurisdiction is critical.

In the meanwhile, we have been at the forefront of state court class action litigation, just as we have been with federal court class action litigation. Over the last twenty years, Adams and Reese has been involved in more than 100 class actions. Currently, we represent clients involved in more than twenty class actions filed in Alabama, Louisiana, Mississippi and Texas. Our class action practice includes representing defendants in cases ranging from products liability, toxic tort, consumer fraud, securities, antitrust and insurance defense.

The critical juncture in most cases is defeating class certification. In addition to Castano, we have defeated class certification in numerous other cases, including those involving alleged toxic exposure and forced evacuations. But where a class is certified, experienced counsel is needed to exploit those benefits that do exist in class actions -- for example employing proof of claim procedures and other innovative discovery techniques to efficiently evaluate and prepare for trial or settlement. And in some cases, the advantages of class certification may actually outweigh the disadvantages. When we are retained on a case, this is often the first issue we help a client to decide.