April 30, 2007 16:45 Age: 7 yrs

Freer Discusses Empirical Research at California Symposium

Professor Richard D. Freer

Richard D. Freer, the Robert Howell Hall Professor at Emory Law, discussed the results of his preliminary empirical research on class action appeals at a Symposium on State Civil Procedure at Western State University College of Law in Orange County, California in April. The symposium feature nationally prominent civil procedure scholars from law schools across the country including the University of Pennsylvania, Duke University and the University of Notre Dame.  

While most civil procedure scholarship focuses on federal courts, this symposium was an attempt to spotlight on state civil procedure. It was attended by more than 150 judges, lawyers, academics and law students.

Professor Freer spoke as part of a panel on management of complex litigation. His research focused on the effect of appellate review of class action certification decisions. In most class action cases, the trial court's decision on whether to allow the matter to proceed as a class the "certification" decision is what Freer called "the watershed event in the litigation." If the court certifies the class, "pressure on the defendant to settle becomes irresistible, said Freer. If the court rejects certification, "the plaintiff faces the death knell of her case." Accordingly, review of the certification by an appellate court is desirable.

The problem, according to Freer, is that class certification decisions are not appealable under normal rules. However, an amendment to federal practice in 1998 allows appeals of such decisions in the discretion of the court of appeals.

While recognizing a general dearth of data, Freer's empirical research indicates the availability of appeals has a negative impact on plaintiffs. In his study of federal cases, for instance, 52 percent of the appeals granted resulted in reversal of a class certification. Only 10 percent resulted in reversal of an order denying certification.

Freer contrasted these percentages with those in particular states, and reached the tentative conclusion that appellate review in federal court makes the federal forum less attractive to plaintiffs and more attractive to defendants in class action cases.

Because the Class Action Fairness Act of 2005 makes it easier for defendants to have class cases moved from state to federal court, the difference in appellate results may impel more defendants to seek such transfers to state court.

A transcript of proceedings and articles will be published in volume 38 of the Western State Law Review next fall.

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