A few weeks ago the U.S. Supreme Court dealt a blow to the lawsuit industry in Bristol-Myers Squibb Co. v. Superior Court of California. In an 8-1 decision, the Court ruled against mass joinder of plaintiffs in state court litigation where the plaintiffs have no connection to the forum state outside the defendant’s home state.
The decision reminds Mississippi litigators of the Mississippi Supreme Court’s 2004 decision in Janssen that was the death knell of the jackpot justice era. Before Jannsen, Mississippi was the major leagues of litigation. After Janssen, the mass tort industry moved all their cases to California, Missouri and other states.
Here is the excerpt from the U.S. Supreme Court’s opinion that I found most interesting:
Our straightforward application in this case of settled principles of personal jurisdiction will not result in the parade of horribles that respondents conjure up. See Brief for Respondents 38-47. Our decision does not prevent the California and out-of-state plaintiffs from joining together in a consolidated action the the States that have general jurisdiction over BMS. BMS concedes that such suits could be brought in either New York or Delaware. Se Brief for Petitioner 13. Alternatively, the plaintiffs who are residents of a particular State–for example, the 92 plaintiffs from Texas and the 71 from Ohio–could probably sue together in their home States….
The Supreme Court is like the Bad News Bears. They should never assume anything.
I don’t know about Texas and Ohio, but plaintiffs definitely can’t sue together in Mississippi. We don’t have mass joinder or a state court Rule 23 for class actions.
Also, lawyers who specialize in products liability have been telling me that Mississippi courts–or at least federal courts in Mississippi–are starting to rule that there is no long-arm jurisdiction over companies like BMS in Mississippi, even in individual actions. They also say that the prospects of suing a company like Ford Motor Co. in its home state are….unappealing.
It’s easy for most Mississippi litigators to sit back and say, “so what? this won’t affect me.” I remember lawyers who said that when the state enacted tort reform. They did not recognize the threat to their practice resulting from an over-supply of lawyers and a drastically lower litigation docket. Many of them are no longer practicing law. The fallout killed their practices.
So I’m not going to say: “so what? this won’t affect me.” It’s a bad sign for litigators–even Mississippi litigators who don’t export cases or litigate cases in other states.
You know all those lawyers on your recent flight to or from Atlanta? Many of them were working on mass joinder cases pending in other states. If most of that litigation gets shut down, there will be even more lawyers back in Mississippi competing for the same shrinking case load. Think ripple effect.
And keep in mind, national litigation firm Susman Godfrey was already reducing contingency work even before this decision in response to expectations of changes resulting from a Republican White House and Congress. The forecast is that things are going to keep getting worse for litigators.
As a litigator, the most depressing aspect of this decision is that it solidifies the trend. Ten years ago, veteran lawyers in Mississippi were fond of saying that things would eventually swing back to the left. That hasn’t happened. Things have swung much further to the right. And the momentum is still heading in that direction. This trend has a lot of litigators depressed.
Their prediction for litigators: