Martinek, Paul J., Pain In The Class: CAFA Boosts Legal Costs, Compliance Week, Aug. 29, 2006.
In Blazing Saddles, Hedley Lamar, (not Hedy) was on a crusade to stamp out decency in the West. Similarly, with the Class Action Fairness Act, Congress was on a crusade to stamp out the numerous abuses in class actions that were thwarting the national judicial system and interstate commerce.
In this article out of Compliance Week, Paul J. Martinek discusses CAFA’s crusade and effect on the cost of litigating a class action and includes the thoughts of several well respected practitioners in the class action arena. CAFA has already accomplished many of its intended purposes, including the litigation of more class actions in federal court. However the incorporation of CAFA into class action practice has resulted in a rise in the cost of litigating these unique actions. In the article, CAFA Law Blog’s Editor in Chief Anthony Rollo explains that most of this cost is a result of “the friction that comes from litigating each of [CAFA’s] little jurisdictional provisions.” Rollo continued, predicting “[f]or the first three to seven years, or until the law is clear, there’s going to be that greater expense. Once the law is clear it will be more smooth, and without the transactional costs we’re seeing at the front edge.”
Simply taking the edge off CAFA hasn’t been the only reason costs have risen. Rollo thinks CAFA may also be decreasing the chance of settlement by restricting the use of coupon settlements. Before CAFA, a defendant that may have been agreeable to a coupon settlement may not be as apt to pursue the same settlement as CAFA has limited the coupon settlements economic attractiveness to a defendant. Combine the extra cost of judicially defining many of CAFA’s provisions with an extended battle, Rollo estimates CAFA has increased the cost of litigating a class action anywhere from 10 to 30 percent, depending on the particular circumstances of each case.
Martinek also explores CAFA’s general impact with Edward Waller, Brian Cabianca, and David Balser, and CAFA’s plaintiff friendly aspects with Paul Rheingold and Joseph Cohen. Unfortunately, for us Mel Brooks’ fans, Sheriff Bart and the Waco Kid were not interviewed – they must have been held up at the William J. La Petomane thruway.
Bottom Line: Good conversational piece providing some insight from people actually in the arena, whose face is marred by the dust and sweat and blood of CAFA. Ok, a little dramatic, but anytime is a good time to incorporate a Teddy Roosevelt quote.