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Class action claims, on the rise in the late 1990s, are gaining new attention through recent U.S. Supreme Court decisions and attempts by Congress to broaden the number of class actions allowed in federal courts. “In the last three years, the U.S. Supreme Court has issued some important class-action decisions after a long silence,” says Boston lawyer Donald R. Frederico, chairman of a new class action committee of the Boston Bar Association due to have its first meeting this week. “There are now differing views on whether any mass torts can be certified for damages through a class action, but still there are cases being filed.” Examining the future effect of the high court decisions in Massachusetts, and what he calls the Congressional move to “federalize” more class action cases, are what he hopes the BBA’s new committee will decipher for attorneys. “The increase in class action cases will affect a lot more practitioners,” he says. The number of class actions — predominantly consumer protection claims, not tort actions — has doubled in federal courts nationwide. According to figures from the Federal Judicial Center in Washington, D.C., reported in a class action decision earlier this year in the 11th U.S. Circuit Court of Appeals, there were 1,742 active federal cases “with class action activity” in 1998, compared to 816 such cases four years earlier. Class action attorneys say that those numbers could increase if Congress agrees to allow more cases into federal court by loosening the federal judicial rules of diversity, which now require all plaintiffs in a case to be residents of states different from those of the defendants. A bill to that effect failed with federal lawmakers last year but is expected to be resurrected. In Massachusetts, no class action statistics are kept for state courts — or generally in state courts nationwide, according to the California-based Rand Institute for Civil Justice, which sponsored a report called Class Action Dilemmas. The study indicates that about half the class actions filed each year in the mid- to late 1990s were in state courts, although statistics are hard to come by because so many class actions result in settlements that aren’t fully divulged, says Stanford University Law School Professor Deborah R. Hensler. “But based on attorney interviews, we found class actions were generally growing in number and variety,” says Hensler, the study’s principal author. It is unknown, however, whether the trend of the 1990s will continue, as Hensler explains: “We’re in an era of litigation, and the Internet has had a huge impact. Consumers are arguably more aware than they used to be. Tort reform made it less attractive to bring individual cases, with caps on the size of claims. On the other hand, businesses have started to eliminate practices that might be inappropriate or would draw the attention of consumers. So whether class actions will continue to rise, I don’t know.” Two such cases decided by the nation’s highest court — Amchem Products Inc. v. Windsor, 521 U.S. 591 (1997) and Ortiz v. Fibreboard Corp., 527 U.S. 815 (1999) — already have contributed greatly to the changing landscape of class action law, say attorneys. In Amchem, the Supreme Court affirmed a lower court’s decision not to allow a class action settlement with 20 asbestos product manufacturers, in part because of highly individualized circumstances of the class members. In Ortiz, the high court reversed an appeals court decision to approve a class action settlement in another asbestos-related case, in which the “limited fund theory” — when there aren’t sufficient funds to resolve all the claims being made — was considered “improper to aggregate the individual tort claims in this manner.” “Those two cases have impacted mass tort cases, and Ortiz tightened up the requirement for finding [for] limited-fund class actions. But consumer protection cases are not affected,” says Fredric L. Ellis, a plaintiff’s attorney whose class action successes include one of the cases highlighted in the Rand study — a $33.5 million settlement against Bausch & Lomb for deceptive pricing and labeling on eye care products. His partner at the law firm of Ellis & Rapacki in Boston, Edward Rapacki, recently won a class action ruling in state Superior Court allowing Massachusetts consumers to sue vitamin manufacturers for alleged price-fixing. But Ellis warns that class action law isn’t for the faint-hearted. “This is a very complex field of law. You really need to know how to handle massive amounts of documents and engage in heavy litigation,” he says. Last year, Frederico, a corporate trial attorney with McDermott, Will & Emery’s Boston office, successfully opposed a class action settlement against Interneuron Pharmaceuticals Inc. in Lexington, maker of the diet drug Redux. The class action claim, Sharync. Wish v. Interneuron, in U.S. district court in Philadelphia, was one of the first to be denied based on the findings of the Ortiz decision.

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