Jimmy Gates with the Clarion-Ledger has this article about the Mississippi Supreme Court’s recent decision rejecting a petition to adopt Rule 23, which would permit class actions in state court.

Judge Primeaux’s blog post on Monday explains why enacting Rule 23 was not popular. He states:

Before I am flooded with comments along the lines of “Mississippi is the only state without a class-action rule,” and “We are out of step again,” let me point out that I am a member of the MSSC’s Advisory Committee on Rules, and have been since 2010. The committee membership includes plaintiffs’ and defense lawyers, an assistant AG, a public defender, 2 each circuit and chancery judges, a county-court judge, and an appellate judge. I am on the subcommittee that exhaustively studied the proposal, including reading scholarly articles on the subject and studies of other states’ rules. We even interviewed proponents of each side of the debate, something we have not done before during my time on the committee. The proposal was discussed in depth. The unanimous conclusion of the subcommittee (with one abstention) was that the federal Class Action Fairness Act of 2005 (CAFA) has had the effect of making almost all class-action suits removable to federal court, obviating the need for a state rule. The full committee voted unanimously (with one abstention) that the proposed rule not be adopted.

My Take:

I never could get worked up over this issue. Are state court class actions really a thing somewhere?

Don’t get me wrong, I’d rather have them than not have them because it might help business for Mississippi attorneys. But I don’t know that this is a big deal.

  • Macy Hanson

    Here is the issue: simply because many state court class action cases might be removed to federal court (subject to potential remand, if the CAFA is not truly implicated) does not mean that a state Rule 23 would not ever be helpful to the efficient and full administration of justice. That is a fallacy.

    I have some pending tort and commercial dispute cases where no federal jurisdiction exists where the Rule 23 elements likely are satisfied. I would love to get class discovery and move for class cert., on a statewide class on state tort or contract law, in these cases. But, I cannot do so.

    So, I disagree with Judge Primeaux. His observation does not fit my experience in practice.

    However, the most serious threat – by far – to class action lawsuits is the incorrect line of cases from the SCOTUS neutering state law defenses recognized under the Federal Arbitration Act. Class action suits are soon to be an endangered species until the FAA gets rewritten.

  • Pete Perry

    Philip, maybe your closing sentence would explain why I think this was a good decision by the MSSC, in addition to the scholarly comments made by Judge Primeaux.

    Since I am not an attorney, I am glad that the court did not establish a new rule whose purpose would be to assist the business of attorneys. In my opinion, the courts and its rules, do not exist for the purpose of providing business for attorneys – plantiff or defense. I realize that you did not mean to imply that by your comment, but it does explain the difference of perspective. And as long as the Federal Courts allows class action cases, and most if not every class action would be removed to the federal court, the establishment of such a rule in MS Courts would only provide more work – and more cost to the defendants – for responding to the state court and making the motions to move to federal court, and starting again.

    • Philip Thomas

      Approve.

      Philip Thomas

    • Bubba Morrison

      What you fail to recognize, either intentionally or out of ignorance, is that such laws inure to the benefit of our citizens who have been wronged and hope for redress in the courts. The fact that attorneys may earn a living representing clients is no different than doctors making a living treating sick patients.

      • Pete Perry

        Bubba, No, I don’t fail to realize as you suggest, but this particular rule change would not affect those citizens that “have been wronged” or that at least have been convinced by others that they may “have been wronged”. As the MSSC noted, there is currently a redress for those instances in the Federal Courts, and what I was referring to was the concept that this change would have allowed for the “class attorney” to increase his fees from filing in state courts only to be removed to the federal court – where the only real beneficiary would be the attorneys. I have absolutely no disagreement that attorneys making a living representing clients is a needed and appropriate role. But just as I would object to the doctors doing unnecessary surgery while they were treating sick patients, I certainly appreciate their ‘making a living’ as you suggest treating sick patients. It was the double work (and assumed extra billing) for the same result that this rule change would provide that I was commenting on, and as was noted by the blog author.

        • Macy Hanson

          Pete, removing cases to federal court would not create any work, or financial windfall, for the plaintiffs’ attorney(s).

          All that the proposed rule change would have done is allow plaintiffs, who do not have a basis for federal court jurisdiction, to have a chance to seek class action certification in state court.

          If you cannot file class claims in state court, then there will be no class claims to remove under the CAFA to federal court. You are missing this point. As did Judge Primeaux, in my opinion.

          “Well, all state court class actions will just get removed to federal court, anyway, so why do we need a state court rule permitting class actions?”

          Because: since there is not state class action mechanism, these cases cannot be filed; and therefore, they cannot be removed. This is a fallacy. I do not understand how the Committee, and Judge Primeaux, do not understand this.

          • Pete Perry

            Marcy, i may be misunderstanding, but I don’t think so. The point was — IF there was a class action allowed as proposed, it would in all likelihood be removed to federal court. And would be allowed. And without a state class action, the plaintiffs are still allowed their day in court – in federal court which has the wherewithall (staff, etc) to handle a class action which our state court judges do not have. As to my comment that it would create more work, ergo more billing, from the attorneys – if a state class action was allowed, the plaintiffs’ attorney would first file in state court, defense would move to remove, and then plaintiff would file in federal court. In my experience, I don’t think those hours spent filing in state and then refiling are going to be contributed pro bono by the plaintiff attorneys. In a class action, if recovery is awarded, the first expense is the charges of the attorneys involved – and in order to make sure all charges are included, I would assume that they would charge for the state filing as well as the refiling once removed to the federal court.

            The Committee, the Court, and Judge Primeaux all understand the situation that there is adequate mechanism available in Mississippi for class action cases, and that there was no reason to duplicate it. The misunderstanding it appears is your concept that since there is no state action mechanism means there is no mechanism – which is not correct.

            • Macy Hanson

              Pete, you are missing the point – yet again (a theme seems to be emerging). There will be no removal to federal court because there will be no class action case (or any case, because, without the class angle, many attorneys won’t bother taking it on in the first place) in the first place. The case, if filed at all, will remain in state court as a non-class case.

              Only state court class action cases can be removed to federal court under the CAFA.

              “The Committee, the Court, and Judge Primeaux all understand the situation that there is adequate mechanism available in Mississippi for class action cases…”

              You are 100% wrong. The Committee failed, once again, to create a class action rule in Mississippi state court so, therefore, THERE IS NO REMEDY available for class actions in Mississippi state court cases.

              You lose this argument.