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The day President George Bush signed the Class Action Fairness Act into law, Madison County plaintiffs lawyer Stephen Tillery of Korein Tillery was rushing to file nine class actions in state court before the law took effect. A few days later, John Beisner used Tillery’s last-minute courthouse offensive as an example of the legislation’s salutary effects: Tillery, Beisner says, had missed the filing deadline. His nine class actions, like most others in the nation, will likely be removed to federal court — which is where tort reformers want them. “People will have the same access to the courts, just different courts,” says Beisner, a class action reform lobbyist. “The biggest effect will be on [plaintiff lawyers] who file cases in magnet courts” like those in Madison County. Tillery concedes that his practice, which was heavily weighted toward state court class actions, will change. (Tillery, who lobbied against the law, did not return calls about whether his last filings missed the deadline.) “We’ve been fighting in state court for years,” says Tillery, name partner in the firm that won a $10 billion verdict in a statewide consumer class action against Philip Morris USA Inc. The federal courts, he says in a complaint echoed by opponents of the new law, are already overburdened, and federal judges are not likely to look happily on big class actions being added to their dockets. “California has twice as many trial judges as the entire federal system,” warns Gerson Smoger of Smoger & Associates, another plaintiffs lawyer who lobbied against the law. “The judicial system is going to regret this.” But plaintiff lawyers are less worried about the impact of the reform on their practices than might be expected. Even Tillery, perhaps the most famous class action lawyer in the most famous pro-plaintiff jurisdiction, says his firm will simply switch to federal court. “The ultimate result will be the same,” he predicts. Adds Jeffrey Lowe of St. Louis, who managed to get one last Madison County class action filed before the new law took effect: “I’ll just be filing more in federal court.” In Texas, recent state tort reforms that limited plaintiff lawyers’ fees already resulted in fewer class action filings in Jefferson County, once considered a “magnet court.” But Texas plaintiff lawyers, says Marc Stanley of Dallas’s Stanley, Mandel & Iola, adapted. Stanley lobbied against the reform, but says it won’t stop him from filing: “It will make things more interesting for us.” Stanley cites the law of unintended consequences. Businesses that pushed for the law might be less happy with it when plaintiff lawyers, who can keep class actions in state court if two-thirds of the class and the defendant are citizens of the state, demand customer lists. “They’re going to fight tooth and nail against it,” says Stanley, laughing. “But I have the right to do analysis before a remand hearing.” Moreover, Stanley notes, defendants might face bigger, richer, more experienced plaintiff firms in federal actions. Several plaintiff lawyers point to the Private Securities Litigation Reform Act, which had the effect — contrary to congressional intent — of consolidating control of securities litigation in a relative handful of large, successful plaintiffs firms. The class action bar has similar formidability; such firms as Washington, D.C.’s Cohen, Milstein, Hausfeld & Toll, Houston’s Susman Godfrey, and San Francisco’s Lieff, Cabraser, Heimannn & Bernstein already spend much of their time in federal court. If the PSLRA is any precedent, class action defendants might not receive the benefits they expect. If there’s one absolute in litigation, it’s never to underestimate the resourcefulness of the plaintiff bar. Gordon Ball heads five-lawyer Ball & Scott, in Knoxville, where he says 60 percent of his practice is state class actions. He expects the new law to change his firm significantly. “We’re going to have to grow, to add more bodies,” he says. But Ball, like most of his peers, also expects continued success. “Class actions will still be certified,” he asserts. “In fact, I’ve always found it easier to get certified in federal court.” Alison Frankel is a reporter with The American Lawyer, a Recorder affiliate based in New York City.

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