# Amicus Curiae Brief — Ford Motor Co. v. McCauley

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2002
- **Citation:** 536 U.S. 987

## Text

No. 01-896 may 6 20m

IN THE RK

Supreme Court of the United States

FORD MOTOR COMPANY AND
CITIBANK (SOUTH DAKOTA) N.A. ,
Petitioners,

V.

JOHN B. MCCAULEY, et al,
Respondents.

On Writ of Certiorari
to the United States Court of Appeals
for the Ninth Circuit

BRIEF OF AMICUS CURIAE
NATIONAL ASSOCIATION OF MANUFACTURERS
IN SUPPORT OF PETITIONERS

JAN S. AMUNDSON CARTER G. PHILLIPS
General Counsel GENE C. SCHAERR*
QUENTIN RIEGEL SUSAN A. WEBER
Deputy General Counsel PAUL J. ZIDLICKY
NATIONAL ASSOCIATION OF MICHAEL S. LEE
MANUFACTURERS PATRICK F. LINEHAN
1331 Pennsylvania Ave., N.W. SIDLEY AUSTIN BROWN &
Washington, DC 20004 WOOD, LLP
(202) 637-3000 1501 K. Street, N.W.
Washington, D.C. 20905
(202) 736-8000

Counsel for Amicus Curiae
May 6, 2002 * Counsel of Record

ann a na
WILSON-EPES PRINTING CO., INC. — (202) 789-0096 - WASHINGTON, D.C. 20001

whether it

any single member of the class.

8
B
é

TABLE OF CONTENTS

QUESTION PRESENTED 000. oooccccsecesccesseeees
TABLE OF AUTHORITIES......00...000..000.c0000c000000000eee
INTEREST OF AMICUS CURIAE 000.000.0000.000.0000000000-
STATEMENT OF THE CASE 20.00

I. UNDER THE NEUTRALITY PRINCIPLE OF
RULE 82, A REQUEST BY A CLASS FOR
INJUNCTIVE RELIEF THAT WOULD
IMPOSE FIXED COSTS IN EXCESS OF
$75,000 SATISFIES THE AMOUNT-IN-

~CONTROVERSY REQUIREMENT, JUST AS
IF THE SAME REQUEST WERE MADE BY A
SINGLE PLAINTIFF OR A GROUP OF
ST cacticcteimisabasctiosensbbissenlobanersdnindepsenbenels

A. The Language Of 28 U.S.C. § 1332(a) And
This Court’s Decisions Make Clear That The
Fixed Costs Of Providing Injunctive Relief
Can Satisfy The Amount-In-Controversy Re-
quirement, Whether The Claim Is Asserted By
An Individual Or A Group Of Individual
TIT os ceriacioneniensmudgdiadbdisacinenneeton e-upanaees

B. Because Class-Action Procedures Cannot
“Extend Or Limit” The Scope Of Diversity
Jurisdiction, The Amount-In-Controversy
Requirement Is Satisfied By A Class Action
Seeking An: Injunction Whenever An
Individual Suit Seeking The Same Relief
Would Satisfy That Requirement......................

(iii)

10

IV
TABLE OF CONTENTS—continued

Il APPLICATION OF RULE 82’S NEUTRALITY
PRINCIPLE TO RECOGNIZE FEDERAL
JURISDICTION IN CASES SUCH AS THESE
SERVES THE POLICIES UNDERLYING
DIVERSITY JURISDICTION WITHOUT
UNDULY BURDENING THE FEDERAL

A. Reversal Of The Decision Below Would
Affect Only A Relatively Small But Important
Set Of Lawsuits Seeking Broad Injunctive
Relief In Addition To Monetary Damages........

B. The Ninth Circuit’s Approach Ignores The
Policies Underlying Diversity Jurisdiction As
Well As The Federal Courts’ Unique Com-
petence To Address Large Class Actions..........

III »s:ccithcssicundsisiapeinsacadctadeamenmasabeeaiamiaidanbitins

Page

18

Vv
TABLE OF AUTHORITIES
CASES Page
In re A.H. Robins Co., 86 F.3d 364 (4th Cir.
Se Dk a 21
In re American Med. Sys., Inc., 75 F.3d 1069 (6th
EASA Ret tact SA 21
Amchem Prods., Inc. vy. Windsor, 521 U.S. 591
ta a ee 2, 3, 20
Anderson v. W.R. Grace & Co., 628 F. Supp.
I iil aallaaliann 4
Ayers v. Township of Jackson, 525 A 2d 287 (N.J.
i a a ay 3
Bank of United States v. Deveaux, 9 US. (5
Cranch) 61 (1809), overruled in part on other
grounds, Louisville, Cincinnati, & Charleston
R.R. v. Letson, 43 U.S. (2 How.) 497 (1844)...... 24
In re Brand Name Prescription Drugs Antitrust
Litig., 123 F.3d 599 (7th Cir. 1997) ..0000.000.... 18
Bristol Tech., Inc. v. Microsoft Corp., 114 F.
Supp. 2d 59 (D. Conn. 2000), vacated on other
grounds, 250 F.3d 152 (2d Cir. 2001)................ 20
Buckley v. Metro-North Commuter R.R., 521 U.S.
REE NER anor RPC 2, 20
In re Cardizem CD Antitrust Litig., 90 F. Supp.
2d 819 (E.D. Mich. 1999)....000.0. ee 18
Castano v. American Tobacco Co., 84 F.3d 734
EERIE A SRE ese Dare 20
Caterpillar Inc. v. Williams, 482 US. 386
EEE EE, SA eE eee ee 19
Cohens v. Virginia, 19 U.S. (6 Wheat.) 264
Ta den 17
Davies v. Corbin, 112 U.S. 36 (1884) ........0.0000.0. 14
Earnest v. General Motors Corp., 923 F. Supp.
1469 (N_D. Ala. 1996) o.oo... cccccccccccscesveseesenseee 4,19
Erie R.R. v. Tompkins, 304 U.S. 64 (1938)............ 24

vi
TABLE OF AUTHORITIES—continued

Page
Franklin v. Gwinnett County Pub. Sch., 503 U.S.

a 20
Ganim v. Smith & Wesson Corp., 780 A.2d 98

i IE SI ie 2 OL Pe ID 3
In re General Motors Corp. Pick-Up Truck Fuel

Tank Prods. Liab. Litig., 134 F.3d 133 (3d Cir.

ERIS TNE eA SE Pe sda 3,4, 19
Gibbs v. EI. DuPont De Nemours & Co., 876 F.

Supp. 475 (W.D.N_Y. 1995) 200.00. 19
Gibson v. Shufeldt, 122 U.S. 27 (1887) .....0.0......... 14
Hunt v. Washington State Apple Adver. Comm'n,

ee > A 11
J.A. Olson Co. v. City of Winona, Miss., 818 F.2d

EE Ie Ee 24
Lane v. Champion Int'l Corp., 844 F. Supp. 724

(S.D. Ala. 1994)... Ee 4,19
Market Co. v. Hoffman, 101 U.S. 112 (1879)....... 11, 12
McClenathan vy. Rhone-Poulenc, Inc., 926 F.

Supp. 1272 (S.D.W. Va. 1996) 0.0.2.0... 20
In re Microsoft Corp. Antitrust Litig., 127 F.

Supp. 2d 702 (D. Md. 2001) ...0...... ee. 18
Mississippi & Mo. R.R. v. Ward, 67 US. (2

REE ee aeRO 11
New Orleans Pac. Ry. v. Parker, 143 U.S. 42

ee ERE Scene mene DS rarere neta 14

Oliver v. Alexander, 31 U.S. (6 Pet.) 143 (1832).. 13, 14
In re Paoli RR. Yard PCB Litig., 916 F.2d 829

RIESE a on. eves 3
Petito v. A.H. Robins Co., 750 So. 2d 103 (Fla.

are oee 2,3
Rooney v. Tyson, 127 F.3d 295 (2d Cir. 1997) ...... 24
Shields v. Thomas, 58 US. (17 How.) 3

RSE NER eee ses ere 12, 13, 14, 15
Smith v. Adams, 130 U.S. 167 (1889).................... 11

Snyder v. Harris, 394 U.S. 332 (1969)... 7, 9, 12, 13, 16

vii
TABLE OF AUTHORITIES—continued

Page
St. Paul Mercury Indem. Co. v. Red Cab Co., 303
a 8,11, 19
Stinson v. Dousman, 61 U.S. (20 How.) 461
EAs IRA ie Sy sec eR 14
In re Three Mile Island Litig., 557 F. Supp. 96
i cs 3,4
Troy Bank vy. G.A. Whitehead & Co., 222 U.S. 39
‘ESM e 14
Wallace v. HealthOne, 79 F. Supp. 2d 1230 (D.
I a 24
Walsh v. Ford Motor Co., 130 FRD. 260
IT ell 20
Zahn v. International Paper Co., 414 US. 291
SINE aici nacdge iota uiasoaidahbethcinticdsdnediaaaessiden 7, 12, 13, 16
CONSTITUTION AND STATUTES
I 10
Judiciary Act of Sept. 24, 1789, 1 Stat. 78............. 10
i peienasiaains 10
EES ASE ee are eee 6, 10, 11
cates 26
EIRENE ao sone noe 17
RULES
Fed. R. Civ. P. 42(a) ..............0.000000.... eee 28
a at enltaiae 6, 17
SCHOLARLY AUTHORITIES

Note, 7he Judicial Panel and the Conduct of
Multidistrict Litigation, 87 Harv. L. Rev. 1001
a en eae a 26

Vili
TABLE OF AUTHORITIES—continued
Page
John A. Beisner & Jessica Davidson Miller,
They're Making a Federal Case Out of It. . . In
State Court, 25 Harv. J.L. & Pub. Pol’y 143
RRR a RB IC 26 SSE Re LER 22, 27
William A. Braverman, Janus Is Not A God of
Justice: Realignment of Parties in Diversity
Jurisdiction, 68 N.Y.U. L. Rev. 1072 (1993)... 25
Deborah Hensler et al., Preliminary Results of the
RAND Study of Class Action Litigation (1997).. 22
Stephen _ Daniel Kaufmann, Comment,
“Federalizing” Class Actions: The Future of
the Jurisdictional Requirements For Diversity-
Based Class Actions, 52 Ala. L. Rev. 1029
Rk eae ree Sid io Oe 26
Brittain Shaw McInnis, 7he $75,000.0/ Question:
What Is the Value of Injunctive Relief?, 6 Geo.
Mason L. Rev. 1013 (1998)... 25
Carter G. Phillips et al, Rescuing Multidistrict
Litigation From the Altar of Expediency, 1997
BYU L. Rev. 821 (1997) ....00000....ccceeee, 26, 27
Mark P. Robinson, Ass’n of Trial Lawyers of
Am., MDL, Class Actions, and Competing
Interests of State Litigation (2001) .................... 28
Victor E. Schwartz et al., Federal Courts Should
Decide Interstate Class Actions: A Call For
Federal Class Action Diversity Jurisdiction

Reform, 37 Harv. J. on Legis. 483 (2000) ......... 21, 25
Edward F. Sherman, Class Actions & Duplicative
Litigation, 62 Ind. L.J. 507 (1987)..................... 26

Georgene Vairo, Judicial v. Congressional
Federalism: The Implications of the New
Federalism Decisions on Mass Tort Cases and
Other Complex Litigation, 33 Loy. L.A. L. Rev.
REI a a a 7 Pe 21

IX
TABLE OF AUTHORITIES—continued
OTHER AUTHORITIES Page

Analysis: Class Action Litigation, Class Action
Watch, Spring 1999, available at http://www.
fed-soc.org/Publications/classactionwatch/class

Manual For Complex Litigation (Third) (1995) ... 26, 27
1 Working Papers of the Advisory Committee on
Civil Rules on Proposed Amendments to Civil

SD I Gh WR civanevinvsevssccsccssnctinevinenins 22
3 Elliot, Debates of the Federal Constitution

ST Sef RR aie 2, ln ee ee 23
14B Charles Alan Wright et al., Federal Practice

and Procedure (3d ed. 1998) ..0.00..................65.. 11, 13

—

IN THE

Supreme Court of the United States

No. 01-896

FORD MOTOR COMPANY AND
CITIBANK (SOUTH DAKOTA) N.A. ,
Petitioners,

V.

JOHN B. MCCAULE:, et al.,
Respondents.

On Writ of Certiorari
to the United States Court of Appeals
for the Ninth Circuit

BRIEF OF AMICUS CURIAE
NATIONAL ASSOCIATION OF MANUFACTURERS
IN SUPPORT OF PETITIONERS

INTEREST OF AMICUS CURIAE

The National Association of Manufacturers (“NAM”)
respecifully submits this brief as amicus curiae in support of
petitioners and urges reversal of the judgment of the United
States Court of Appeals for the Ninth Circuit.’

! Pursuant to Rule 37.6 of the Rules of this Court, amicus states that no
counsel for a party authored this brief in whole or in part, and no person or
entity other than amicus, its member companies, or its counsel, made a
monetary contribution to the preparation or submission of the brief.
Pursuant to Rule 37.3(a), a letter of consent to file this brief from
respondents has been fiied with the Clerk of the Court, petitioners have
filed with the Court a blanket consent for all amici.

2

The NAM is the oldest and largest multi-industry trade
association in the United States. The NAM represents 14,000
member companies and subsidiaries (including 10,000 small
and mid-sized manufacturers) and 350 member associations
serving manufacturers and employees in every industrial
sector and all 50 states.

The NAM and its member companies are vitally interested
in the proper application of the federal diversity statute to a
relatively small, but exceedingly important group of lawsuits
filed against out-of-state manufacturers seeking broad
injunctive relief on behalf of plaintiff classes. At bottom, the
NAM believes that a plaintiff's unilateral decision to proceed
via class action rather than individually should have no
bearing on whether there is federal jurisdiction in such cases.
That is especially true in class-action cases which, like this
one, involve requests for broad injunctive relief.

Such requests take many forms. One that increasingly
arises in state-wide or nationwide toxic tort class actions is a
request for medical monitoring. See, e.g., Amchem Prods.,
Inc. v. Windsor, 521 U.S. 591, 603 (1997) (alleging, inter
alia, medical monitoring claim). Medical monitoring often
involves a court-administered fund, which finances not only
the costs associated with periodic medical examinations, but
also the costs of court-mandated studies on the long-term
effects of a toxic substance or product in question, and
research regarding related conditions. Such relief thus

? This Court, of course, has been skeptical of medical monitoring and
has limited its effect in cases arising under the Federal Employer Liability
Act. Buckley v. Metro-North Commuter R.R., 521 U.S. 424, 438-39
(1997) (assuming that “an exposed plaintiff can recover related reasonable
medical monitoring costs [as an element of damages] if and when he
develops symptoms,” but holding that medical monitoring costs do not
represent a “separate negligently caused economic ‘injury”” for which a
defendant may recover even if he has no current “disease or symptoms”).
Nevertheless, medical monitoring relief has been sought in a number of
different types of mass tort actions. See, e.g., Petito v. A.H. Robins Co.,

-

3

requires not only a court-administered fund, but also the
appointment of (and adequate compensation for) a fund
administrator and an advisory panel of qualified and
knowledgeable individuals that will devise a comprehensive
medical monitoring plan. See, e.g., Petito v. A.H. Robins Co.,
750 So. 2d 103, 106 (Fla. Dist. Ct. App. 1999) (holding that
court in equity may create, supervise, and implement medical
monitoring plan in action against manufacturer of Fen-Phen).
The costs of compliance with such relief, if it is available
under state law, undoubtedly would exceed the jurisdictional
amount, even if the remedy were limited to the cost of the
administration components of the fund. Accordingly, a claim
for injunctive medical monitoring relief should satisfy the
amount-in-controversy requirement.

Other class-action plaintiffs sometimes seek court-ordered
safety programs. See, e.g., Jn re General Motors Corp. Pick-
Up Truck Fuel Tank Prods. Liab. Litig., 134 F.3d 133, 139
(3d Cir. 1998); see also Jn re Three Mile Island Litig., 557 F.
Supp. 96, 97 & nl (MD. Pa. 1982); Ganim v. Smith &
Wesson Corp., 780 A.2d 98, 117 (Conn. 2001) (seeking
injunctive relief against gun manufacturer in form of funding
for “programs focused on handgun safety and owner
responsibility”). In General Motors, for example, a plaintiff
class brought several actions in both state and federal court
against the manufacturer of pick-up trucks alleging that they
had a defectively designed fuel system. 134 F.3d at 137. As
part of a proposed settlement in state court, plaintiffs
sought—and defendant agreed to—defendant-funded “safety
programs, researching the safety of general fuel systems and
testing proposed retrofits for safety and feasibility.” /d. at
139. These proposed programs purportedly would cost a total

750 So. 2d 103 (Fla. Dist. Ct. App. 1999) (pharmaceutical product),
Amchem, 521 U.S. at 597 (exposure to asbestos), Ayers v. Township of
Jackson, 525 A.2d 287 (N.J. 1987) (groundwater contamination), /n re
Paoli R.R. Yard PCB Litig., 916 F.2d 829 (3d Cir. 1990) (exposure to
PCBs).

4

of $5.1 million. /d (explaining that injunctive relief would
result in research and testing for retrofits); see also /n re
Three Mile Island Litig., 557 F. Supp. at 97 (noting that
approved settlement included fund for “evacuation planning
for the future”).

Another category of lawsuits affected by the decision below
are cases seeking an injunction ordering the defendant to
remove a toxic substance from a common area enjoyed by
multiple plaintiffs or plaintiff class. See, eg., Lane v.
Champion Int'l Corp., 844 F. Supp. 724, 727 (S.D. Ala.
1994); Anderson v. W.R. Grace & Co., 628 F. Supp. 1219,
1232 (D. Mass. 1986). In Lane, for example, the plaintiff
class consisted of individuals who owned property adjoining a
bay in which the defendant released toxic substances from its
paper mill. 844 F.Supp. at 726. Part of the relief sought by
the class was an injunction “to force the defendants to clean
up and remove from [the bay] all toxins and other pollutants
they had released there.” /d. at 727 (ordering remand for lack
of jurisdiction only after plaintiffs amended complaint to
exclude request for injunctive relief). Such relief would
satisfy the jurisdictional minimum if the costs of cleanup to
the defendant exceeded $75,000.°

Finally, some class-action plaintiffs have sought damages
and injunctive relief in the form of corrective advertising. In
Earnest v. General Motors Corv., 923 F. Supp. 1469 (N_D.
Ala. 1996), for example, the plaintiff class alleged that the
defendants designed and installed defective engines and
engine control modules in their automobiles, and requested
injunctive relief that included an “advertising campaign to
notify putative class members of the alleged defect.” /d. at
1471. There too, if the cost of implementing the advertising

> See also Anderson v. W.R. Grace & Co., 628 F. Supp. 1219, 1232-33
(D. Mass. 1986) (request for injunction ordering defendant to remove
hazardous substances previously dumped on plaintiffs’ property, and all
contamination from area groundwater).

Dias . ”),

11

whether “the matter in controversy exceeds the sum or value
of $75,000.” /d. § 1332(a). Under Rule 82, the application of
this limitation cannot depend on whether a group of plaintiffs
chooses to proceed through individual lawsuits or through the
use of the class-action mechanism.

1. There can be no doubt that the fixed costs of an
injunctive remedy can satisfy the amount-in-controversy
requirement for federal diversity jurisdiction in a suit brought
by an individual plaintiff, Where a single plaintiff brings
claims for specified damages, the “sum or value” of the
“matter in controversy” is determined by the amount specified
in the complaint. St. Paul Mercury Indem. Co., 303 US. at
290-92 (involving removal from state court based upon
diversity jurisdiction). However, where the complaint does
not specify the precise amount sought, the court must assess
the “sum or value” of the “matter in controversy” to
determine whether it has diversity jurisdiction. See 14B
Charles Alan Wright et al., Federal Practice and Procedure
§ 3702, at 49-52 (3d 1998).

This Court has repeatedly held that the jurisdictional
amount-in-controversy requirement may be satisfied based
upon claims for injunctive relief See, eg., Hunt v.
Washington State Apple Adver. Comm'n, 432 US. 333
(1977), Mississippi & Mo. RR. v. Ward, 67 US. (2 Black)
485 (1862). In so doing, the Court has explained that “the
amount in controversy is measured by the value of the object
of the litigation.” Hunt, 432 U S. at 347. In turn, the “value
of the object” of any such litigation may fairly be understood
as the defendant’s cost of complying with an injunction
sought by the plaintiffs. See, e.g., Market Co. v. Hoffman,
101 US. 112, 113 (1879) (measuring the amount in
controversy by reference to the defendant's cost of complying
with an injunction sought by 206 individual plaintiffs, each of
whom stood to benefit by an amount less than the
jurisdictional minimum), see also Smith v. Adams, 130 US.
167, 175 (1889) (“[T]}he pecuniary value of the matter in

12

dispute may be determined, not only by the money judgment
prayed, where such is the case, but in some cases by . . . the
pecuniary result to one of the parties immediately from the
judgment.”).

Thus, the amount-in-controversy requirement of Section
1332(a) is clearly satisfied if a single plaintiff seeks an
injunction that would require the defendant to expend more
than the jurisdictional minimum in order to comply with it.
See Market Co., 101 US. at 113.

. 2. Moreover, where several plaintiffs join in seeking an
injunction, the law is settled that the costs of complying with
the Injunction can satisfy the amount-in-controversy
requirement to the extent those costs are fixed—that is, to the
extent those costs do not depend on the presence of any
individual plaintiff. As this Court has previously noted,
“when several plaintiffs unite to enforce a single title or
right, in which they have a common and undivided interest, it
is enough if their interests collectively equal the jurisdictional
amount.”” Zahn, 414 U.S. at 294 (quoting Troy Bank v. G.A.
Whitehead & Co., 222 US. 39, 40-41 (1911)); see also
Snyder, 394 U.S. at 337 (same). Thus, when multiple
plaintifi's bring a single claim to vindicate an undivided
interest shared by the plaintiffs collectively, the “sum or
value” of the entire claim may be used td measure the amount
in controversy with respect to each individual plaintiff.

This basic approach is well-established in this Court's
precedents. For example, in Shields v. Thomas, 58 US. (17
How.) 3 (1854), the representatives of a decedent’s estate
brought suit against the husband of the decedent’s widow,
alleging that the former had converted to his own use a
significant portion of the property in the estate. /d at 4. The
plaintiffs obtained a decree requiring the defendant “to pay to
each [plaintiff] the specific sum to which he was entitled, as
his proportion of the property misappropriated by” the
defendant. Jd. When the defendant failed to comply with that
decree, the plaintiffs obtained an injunction ordering him to

13

do so. Jd. The plaintiffs moved to dismiss the appeal to this
Court, arguing that, because no single plaintiff was entitled to
more than $2,000.00 under the decree, appellate jurisdiction
was lacking. /d But the Court rejected that argument,
explaining that

[T]he matter in controversy .. . was the sum due to the
representatives of the deceased collectively; and not the
particular sum to which each was entitled, when the
amount due was distributed among them, according to
the laws of the State. They all claimed under one and
the same title. They had a common and undivided
interest in the claim; and it was perfectly immaterial to
the appellant, how it was to be shared among them. He
had no controversy with either of them on that point. . . .

Id. at 4-5 (emphasis added). In so holding, the Court
distinguished Oliver v. Alexander, 31 U.S. (6 Pet.) 143
(1832), where multiple plaintiffs were deemed not to satisfy
the jurisdictional amount requirement because each plaintiff's
“recovery d{id] not depend upon the recovery of others, but
rest{ed] altogether on its own evidence and merits.” Shields,
58 U.S. (17 How.) at 5. The Shields Court explained that
Oliver was inapposite because the plaintiffs in Shields had a
“common and undivided interest” in the subject of their
claims, whereas the interests claimed by the plaintiffs in
Oliver were “separate and distinct.” /d. at 5.

Subsequent decisions consistently have focused on whether
the plaintiffs have a “common and undivided interest,” such
that the “sum or value” of their claims may be considered in
the aggregate, or “separate and distinct” interests, such that
each plaintiff's claim must be considered individually. See,
e.g., Zahn, 414 U.S. at 294; Snyder, 394 U.S. at 338; see also
14B Charles Alan Wright, supra, § 3704, at 143-47. Like this
case, many (if not most) of the cases falling into the former

14

category have involved claims for injunctive relief, which by
their nature implicate common and undivided interests.”

Actions consisting of “separate and distinct” claims, by
contrast, typically involve claims for money damages arising
out of a single defendant’s breach of several related
obligations, see, e.g., Oliver, 31 U.S. (6 Pet.) at 145-46
(admiralty suit brought by seamen to collect unpaid wages
from ship owners), or claims for equitable relief that can
scarcely be distinguished from claims for money damages,
see, e.g., Gibson v. Shufeldt, 122 US. 27, 39 (1887) (equit-
able claims that would conclusively determine the amount of
money each plaintiff would recover from the defendant).

The claim at issue here—for an injunction requiring the
petitioners to re-establish their credit card rebate program—
obviously is not “separate and distinct” as to each plaintiff.
To the contrary, regardless of other individual claims that the
plaintiffs seek to assert, that particular claim vindicates a
“common and undivided interest” shared by all of the
plaintiffs in this case. As explained previously, every
plaintiff in this case seeks precisely the same relief—a single
injunctien requiring the defendants to reinstate the rebate
program. Although some plaintiffs ultimately may benefit
from that program to a greater degree than others, the
injunction itself would treat all plaintiffs equally. And it is
undisputed that the injunction would impose on each
defendant fixed compliance costs exceeding $75,000—costs
that would not drop below the jurisdictional amount even if
this act’on had been brought by a single plaintiff.

5 See, e.g., Troy Bank v. GA. Whitehead & Co., 222 U.S. 39, 40-41
(1911) (vill in equity to enforce vendor’s lien), New Orleans Pac: Ry. v.
Parker, 143 U.S. 42, 52 (1892) (bill in equity seeking mortgage
foreclosure); Davies v. Corbin, 112 U.S. 36, 40-41 (1884) (bill to enjoin
the collection of certain taxes); Stinson v. Dousman, 61 U.S. (20 How.)
461, 467 (1857) (injunction requiring specific performance under real
estate contract); Shields v. Thomas, 58 U.S. (17 How.) 3, 4 (1854) (bill in
equity to enforce the terms of a pnor judgment).

15

In that sense, therefore, “the matter in controversy” here is
“not the particular sum to which each [plaintiff is] entitled,”
but rather the class’s “common and undivided interest” in
having the rebate program reinstated. Shields, 58 U.S. (17
How.) at 4-5. Thus, the respective interests of the plaintiffs in
this case are sufficiently “common and undivided” that the
“sum or value” of the relief they seek may be considered in
the aggregate, at least to the extent of the fixed costs of
providing that relief.

B. Because Class-Action Procedures Cannot
“Extend or Limit” The Scope Of Diversity
Jurisdiction, The Amount-In-Controversy Re-
quirement Is Satisfied By A Class Action Seeking
An Injunction Whenever An Individual Suit
Seeking The Same Relief Would Satisfy That
Requirement.

Accordingly, there can be no serious question that the cost
of complying with the respondents’ proposed injunction
would be considered as part of the amount in controversy if
the plaintiffs all were suing the respondents as individuals
rather than as part of a class pursuant to Rule 23. The only
question, then, is whether the presence of a Rule 23 class
action makes any difference. As shown below, it cannot,
consistent with Rule 82’s neutrality principle.

In the decision below, the Ninth Circuit did not dispute that
an individual suit seeking the very injunctive relief sought in
this case would satisfy the amount-in-controversy
requirement. However, based on its analysis of this Court’s
decisions in Zahn and Snyder, the Ninth Circuit concluded
that the presence of a class action in this case was sufficient to
preclude satisfaction of that requirement. J.A. 116. Far from
supporting the Ninth Circuit’s conclusion, however, Zahn and
Snyder \ogically confirm the existence of federal diversity
jurisdiction in this case, particularly this Court’s analysis of
Rule 82.

16

In Snyder, not one of the plaintiffs sought damages in
excess of the jurisdictional amount and therefore the amount
in controversy for diversity jurisdiction could have been met
only by aggregating the damages sought by the entire plaintiff
class. 394 US. at 333. Similarly, in Zahn, although the
named plaintiffs each had demonstrated that their claims
exceeded the jurisdictional amount, no such showing could be
made with respect to the unnamed members of the class. 414
US. at 292. In both cases, this Court refused to aggregate the
claims of the multiple plaintiffs, and held instead that “fejach
plaintiff in a . . . class action must satisfy the jurisdictional
amount, and any plaintiff who does not must be dismissed
from the case—‘one plaintiff may not ride in on another’s
coattails.” Jd. at 301; see Snyder, 394 U.S. at 336 (same).

In so doing, however, the Court carefully explained that the
procedural rule governing class actions neither expanded nor
limited the scope of federal subject matter jurisdiction. See
Zahn, 414 US. at 299-300; Snyder, 394 US. at 336-37.
Outside of the class-action context, the Court reasoned, each
and every plaintiff must “individually satisfy the
jurisdictional amouni,” Zahn, 414 US. at 292, and the class-
action mechanism is merely a useful procedural tool that
enables large groups of plaintiffs to join together in a single
action for purposes of convenience. Jd. at 299-300; Snyder,
394 US. at 336-37. The availability of that procedural
mechanism therefore could not authorize a group of plaintiffs
to maintain collectively a federal diversity suit if each
plaintiff could not bring such a claim individually. Zahn, 414
US. at 299-301; Snyder, 394 U.S. at 336-37. To do so, the
Court ruled, “would clearly conflict with the ccmmand of
Rule 82 that ‘[t]hese rules shall not be construed to extend or
limit the jurisdiction of the United States district courts.””
Snyder, 394 U.S. at 337 (quoting Fed. R. Civ. P. 82), see
Zahn, 414 US. at 299.

The facts here are the logical flip-side of Snyder and Zahn.
That is, the availability of class-action procedures cannot

17

“limit” the subject matter jurisdiction of the courts, Fed R.
Civ. P. 82, where each plaintiff in the class could satisfy the
jurisdictional amount based upon the request for injunctive
relief In this case, therefore, in contrast to Zahn and Snyder,
if any of the plaintiffs brought a separate action seeking the
same injunctive relief they now seek as a class, they could
have proceeded in federal court because the “sum or value” of
each such action would exceed $75,000. By the same token,
any such action filed in state court could properly have been
removed to federal district court. See 28 U.S.C. § 1441(a).

Zahn and Snyder thus logically confirm that plaintiffs’
decision to proceed as a class action rather than multiple
individual actions does not “limit” federal subject matter
jurisdiction where the federal courts would have had
jurisdiction over each claim for injunctive relief if plaintiffs
had sued individually. Any such “limit”—including the
limitation imposed by the Ninth Circuit below—would flatly
violate Rule 82.

**** *

The language of Section 1332 and this Court’s decisions
interpreting the amount-in-controversy requirement, when
considered in light of Rule 82’s neutrality principle, make
clear that the federal diversity statute encompasses the request
for injunctive relief by the plaintiff class in this case. Thus,
the Ninth Circuit erred in declining to exercise jurisdiction.
As Chief Justice Marshall put it more than 180 years ago:

We have no more right to decline the exercise of
jurisdiction which is given, than to usurp that which is
not given. The one or the other would be treason to the
constitution.

Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 404 (1821).
Accordingly, respondents’ efforts to limit the scope of
jurisdiction conferred by the diversity statute are properly
directed to Congress, not this Court.

18

ll. APPLICATION OF RULE 82’S NEUTRALITY
PRINCIPLE TO RECOGNIZE FEDERAL
JURISDICTION IN CASES SUCH AS THESE
SERVES THE POLICIES UNDERLYING DIVER-
SITY JURISDICTION WITHOUT UNDULY
BURDENING THE FEDERAL COURTS.

The court of appeals refused to adhere to these principles
based upon a concern that recognition of diversity jurisdiction
here would unduly burden federal courts in future cases. But
that concern is misplaced, both because it vastly overstates
the real-world impact of Rule $2 in this context, and because
it overlooks the key role that federal courts can and should
play in the efficient and fair resolution of such class-action
suits against out-of-state defendants.

A. Reversal Of The Decision Below Would Likely
Affect Only A Relatively Small But Important
Set Of Lawsuits Seeking Broad Injunctive Relief
In Addition To Monetary Damages.

There is no reason to believe that a fair application of Rule
82 in cases such as these will significantly increase the burden
on federal courts—if it has any such effect at all. In the first
place, most of the federal courts to address this issue have
disagreed with the Ninth Circuit and have found that the fixed
costs of complying with an injunction can satisfy the amount-
in-controversy requirement.° For that and other reasons,
many of these suits already are being maintained in federal

° See, e.g., In re Brand Name Prescription Drugs Antitrust Litig., 123
F.3d 599, 610 (7th Cir. 1997) (explaining that correct standard is “the cost
to each defendant of an injunction running in favor of one plaintiff’), /n re
Microsoft Corp. Antitrust Litig., 127 F. Supp. 2d 702, 719 n.16 (D. Md.
2001) (“Of course, the cost to the defendant of an injunction running in
favor of one plaintiff will often be used as the test to determine the amount
in controversy in class actions and other multi-plaintiff cases.”), In re
Cardizem CD Antitrust Litig., 90 F. Supp. 2d 819, 834-35 (E.D. Mich.
1999) (adopting the Seventh Circuit’s approach /n re Brand Name).

—

ee ee

19

court. See, e.g., Gibbs v. E.J. DuPont De Nemours & Co.,
876 F. Supp. 475, 480 (WDN.Y. 1995) (medical
monitoring); General Motors, 134 F.3d at 139 (safety
program), Lane, 844 F. Supp. at 727 (clean-up cf toxic
substance); Earnest, 923 F. Supp. at 1471, 1472.

As discussed in the NAM’s statement of interest, these
cases include class actions seeking injunctive relief in the
form of “medical monitoring,” “safety programs,” “clean-up”
programs, and “corrective advertising.” There is no evidence
that such cases are creating an undue burden in other circuits.

Moreover, a ruling reversing the decision below is unlikely
to affect a plaintiff's incentive to choose a federal forum
rather than a state forum. Given the enormous benefits to
plaintiffs in certain jurisdictions of proceeding in state court, a
reversal of the decision below is much more likely to cause
most plaintiffs to forgo a claim for injunctive relief rather
than proceed in federal court.

Indeed, in all such suits, the plaintiffs and their attorneys
ultimately control whether such cases will proceed in a
federal forum or in state court. As explained in St. Paul
Mercury Indemnity Co. v. Red Cab Co., 303 US. 283 (1938),
if a plaintiff “does not desire to try his case in federal court he
may resort to the expedient of suing for less than the
jurisdictional amount ... .” /d. at 294.

By the same token, in cases such as those at issue here,
there is ample reason to believe that a plaintiff committed to
brining such claims in state court would simply omit claims
for injunctive relief to avoid federal diversity jurisdiction. Cf
Caterpillar Inc. v. Williams, 482 US. 386, 399 (1987)
(plaintiffs may, “by eschewing claims based on federal law,
choose to have the cause heard in state court”). First, and
foremost, plaintiffs may omit such claims because they
believe the likelihood of succeeding on the merits is small.
Many of the types of class-action equitable relief discussed
above have been rejected or criticized by courts across the

20

country.’ Moreover, even if the theory underlying the request
for relief were viable, the right to equitable relief in such
cases arises only if money damages are inadequate. Cf.
Franklin v. Gwinnett County Pub. Sch., 503 U.S. 60,°75-76
(1992) (“[I]t is axiomatic that a court should determine the
adequacy of a remedy in law before resorting to equitable
relief”). For example, the benefits of injunctive relief (such
as the discounts on auto purchases under the credit card
program in this case) often can be realized in state court
through money damages.

Second, plaintiffs may choose to omit such equitable claims
if they perceive an advantage in proceeding in state court
rather than federal court. In federal court, for example, class
actions receive exacting scrutiny. Indeed, in Amchem Prods.
v. Windsor, 521 U.S. 591 (1997), this Court found that a
proposed class of “hundreds of thousands, perhaps millions”
of individuals who were allegedly harmed by past exposure to
asbestos-related products failed to satisfy Rule 23’s
predominance requirement. Id at 597° This rigor on the part

’ See, e.g., Buckley, 521 U.S. at 439 (holding that medical monitoring
costs do not under FELA represent a “separate negligently caused
economic ‘injury’” for which a defendant may recover even if he has no
current “disease or symptoms”), McClenathan v. Rhone-Poulenc, Inc.,
926 F. Supp. 1272, 1281 (S.D.W. Va. 1996) (questioning basis of
injunctive relief in form of “independent safety audits”), Bristol Tech.,
Inc. v. Microsoft Corp., 114 F. Supp. 2d 59, 98 (D. Conn. 2000) (noting
that courts grant requests to order corrective advertising only under certain
limited circumstances), vacated on other grounds, 250 F.3d 152 (2d Cir.
2001); of Walsh v. Ford Motor Co., 130 F.R.D. 260, 266-67 (D.DC.
1990) (declining to certify class under Rule 23(b)(2) where money
damages would “be more certain to provide real benefits to affected
motorists” than the requested injunction ordering recall and retrofit of
defective vehicles).

®The federal courts of appeals have employed equally rigorous
analyses when determining whether to certify a class action. See, e.g,
Castano v. American Tobacco Co., 84 F.3d 734 (Sth Cir. 1996) (reversing
district court’s grant of class certification to a national class of cigarette

=—_—-_ —__ ——

21

of the federal courts stands in sharp contrast to the more
liberal approach toward class certification that class-action
lawyers may enjoy in some state courts.

Indeed, profound concern has been expressed that the
“laissez-faire” approach taken by many state-court judges
often results in “entrepreneurial contingency fee attorneys . . .
bypass[ing] the rigorous review given by federal judges and
obtain{ing] certification of questionable claims and approval
of outrageous settlements.” Victor E. Schwartz ef al.,
Federal Courts Should Decide Interstate C lass Actions: A
Call For Federal Class Action Diversity Jurisdiction Reform,
37 Harv. J. on Legis. 483, 499 (2000). For example, one
study on class actions documented that over a two-year
period, a state court in rural Alabama certified almost as
many class actions (35 cases) as all 90 federal district courts
did in one year (38 cases). /d. In addition, a practice referred
to as “‘drive-by’ class certifications” may occur whereby
some state-court judges certify classes at the request of
plaintiffs’ counse! before defendants have been served with a
complaint or given a chance to respond. See id. at 501.

Such lax standards may account for the recent explosion in
the number of class-action lawsuits being filed in state courts.
See Georgene Vairo, Judicial v. C ongressional Federalism:
The Implications of the New F ederalism Decisions on Mass
Tort Cases and Other Complex Litigation, 33 Loy. L.A. L.
Rev. 1559, 1597 (2000) (noting that the Amchem decision
accelerated the trend of attorneys seeking “to certify
settlement classes in state courts where the rules on
certification are perceived to be more liberal”). According to

smokers); cf. Jn re American Med. Sys., Inc., 75 F.3d 1069, 1089 (6th Cir.
1996) (noting that “strict adherence to Rule 23 in products liability cases
involving drug or medical products which require FDA approval is
especially important”) (emphasis omitted), /n re AH. Robins Co. , 86 F.3d
364, 375-76 (4th Cir. 1996) (refusing to allow plaintiffs’ attorneys to
receive additional ten percent in fees from unanticipated surplus of
settlement funds set aside for class members)

22

the Federal Judicial Conference’s Advisory Committee on
Civil Rules, U.S. companies have in recent years experienced
a 300-1,000 per cent increase in the number of class actions
filed against them, with the vast majority of them having been
filed in state courts. 1 Working Papers of the Advisory
Committee on Civil Rules on Proposed Amendments to C ivil
Rule 23, at ix-x (May 1, 1997). This trend is confirmed by a
study performed by the RAND Corporation, which concluded
in 1997 that the “doubling or tripling ... of the number of
putative class actions” has been concentrated in the state court
systems, “because plaintiffs .. . see increased unwillingness
among federal judges to certify or sustain certification of
class actions.” Deborah Hensler et al., Preliminary Results of
the RAND Study of Class Action Litigation 15 (1997).
Another survey conducted in 1999 revealed that while federal
court class actions had increased by 340 per cent over the past
decade, state-court class-action filings had increased 1,315
per cent. See Analysis: Class Action Litigation, Class Action
Watch, Spring 1999, at 3, available at http://www fed-
soc org/Publications/classactionwatch/classv | i3_pdf ‘

For all these reasons, if this Court rules that a claim for
broad injunctive relief with fixed costs in excess of $75,000
satisfies the amount-in-controversy requirement, plaintiffs
with access to class-action-friendly state courts are not likely
to forgo those benefits just to maintain a claim for injunctive
relief. They are much more likely to forgo their claims for

° A more recent study published in 2001 (“the Harvard study”)
examined data from the dockets of three state courts widely viewed as
“class action magnets.” John H. Beisner & Jessica Davidson Miller,
They're Making A Federal Case Out of It... In State Court, 25 Harv.
JL. & Pub. Pol’y 143, 205 (2001). The results of the Harvard study
confirmed that the filing of state-court class actions has increased in
numbers wildly disproportionate to their populations. Id. at 161-62 & ti.
lL. In addition, the study found that the majority of class actions filed in all
three counties were brought on behalf of nationwide classes. Id. at 163-64
& tbi. 2.

—_

23

broad injunctive relief and focus instead on damage claims
that fall below the federal threshold.

B. The Ninth Circuit’s Approach Ignores The
Policies Underlying Diversity Jurisdiction As
Well As The Federal Courts’ Unique
Competence To Address Large Class Actions.

On the other hand, to the extent a plaintiff nevertheless
insists on seeking broad, class-wide equitable relief against an
out-of-state defendant, that is precisely the type of case that
can and should proceed in federal court. In this regard, the
decision below simply ignores the purposes underlying
diversity jurisdiction and the federal courts’ unique
competence to address such cases in a fair, efficient and just
manner

1. Federal diversity jurisdiction was envisioned by the
Framers and first enacted by the Congress more than 200
years ago to address concerns regarding bias and the
appearance of bias in cases involving citizens of different
states.

In Federalist No. 80, for example, Alexander Hamilton
suggested that “the national judiciary ought to preside in all
cases in which one State or its citizens are opposed to another
State or its citizens” because the federal judiciary “having no
local attachments, will likely be impartial between the
different States and their citizens.” Federalist No. 80
(Alexander Hamilton). James Madison echoed the view that
federal diversity jurisdiction is necessary to avoid local bias.
He reasoned that “a strong prejudice may arise in some states,
against the citizens of others, who may have claims against
them” and, as a result, a “citizen of another State might not
chance to get justice in a state court, and at all events he
might think himself inured.” 3 Elliot, Debates of the Federal
Constitution 486 (1836).

Consistent with these views, this Court has explained that
Congress conferred diversity jurisdiction in the Judiciary Act

24

of 1789 “to prevent apprehended discrimination in state
courts against those not citizens of the State.” Erie RR v
Tompkins, 304 U.S. 64, 74 (1938)."°

Federal diversity jurisdiction also serves the purpose of
combating the perception of bias by out-of-state defendants
Chief Justice Marshall recognized the constitutional
significance of even the perception of bias

However true the fact may be, that tribunals of the states
will administer justice as impartially as those of the
nation, to parties of every description, it is not less true
that the constitution itself entertains apprehensions of this
subject, or views with such indulgence the possible fears
and apprehension of suitors, that it has established
national tribunals for the decision of controversies
between _. citizens of different states.

Bank of United States v. Deveaux, 9 U.S. (5 Cranch) 61, 87
(1809), overruled in part on other grounds, Louisville,
Cincinnati, & Charleston R.R. v. Letson, 43 U.S. (2 How.)
497 (1844). Thus, federal diversity jurisdiction serves not
only to protect out-of-state defendants against actual bias, but
also to bolster public confidence in the dual state and federal
judicial systems by addressing concerns regarding the mere
appearance of discrimination in favor of local residents.

'° Federal courts continue to recognize the need to protect out-of-state
defendants against state-court hostility through diversity jurisdiction. See,
e.g., Rooney v. Tyson, 127 F.3d 295, 297 n.1 (2d Cir. 1997) (recognizing
that asking state court to decide case pending in federal court “would
contravene the object of diversity jurisdiction of presenting the actual
parties to a litigation with a neutral, federal, playing field”), /.A. Olson
Co. v. City of Winona, Miss., 818 F.2d 401, 404 (Sth Cir. 1987)
(“Diversity jurisdiction exists for the purpose of providing a federal forum
for out-of-state litigants where they are free from prejudice in favor of a
local litigant.”); Wallace v. HealthOne, 79 F. Supp. 2d 1230, 1232 (D.
Colo. 2000) (“The history and purpose of diversity jurisdiction is to
provide a neutral forum for out-of-state parties who fear that they will be
subjected to local prejudice if forced to litigate as strangers in a state
court.”).

EEE LT

25

Anecdotal accounts of bias against out-of-state defendants
in the context of class-action litigation are, unfortunately, well
documented and take a number of forms. For example,
commentators report that there may be local hostility toward
an out-of-state defendant by the presiding judge, who is
elected by a constituency that may have a strong bias against
the out-of-state company. See Brittain Shaw McInnis, The
$75,000.01 Question: What Is the Value of Injunctive Relief”,
6 Geo. Mason L. Rev. 1013, 1027-28 (1998) (hereinafter
MclInnis) (noting that “[i}n some instances, |. . judges can end
up deciding cases that involve attorneys or parties who have
made substantial contributions to their campaigns”), see also
William A. Braverman, Janus Is Not A God of Justice:
Realignment of Parties in Diversity Jurisdiction, 68 NYU
L. Rev. 1072, 1083 n.50 (1993) (noting that empirical studies
suggest state-judge biases against out-of-state defendants)
Indeed, some commentators have underscored that “[i}n states
where judges are elected, some judges may feel political
pressure to approve large class-action settlements so as to
project an image of looking out for consumer interests and
bringing large sums of money into their jurisdictions.
Schwartz ef al., supra, at 502. Diversity jurisdiction is the
constitutionally prescribed antidote to these problems,

whether real or perceptual.

2 To the extent such class-action cases end up in federal
rather than state court, moreover, federal courts are well
suited to deal with them. Indeed, federal courts offer
institutional strengths that enhance their ability to resolve
class-action lawsuits seeking broad (¢.g., nation-wide)
injunctive relief efficiently and effectively—in many cases far
more efficiently than their state-court counterparts.

First, the federal judiciary typically has greater resources—
including human resources such as a full complement of law
clerks, secretaries and satellite court personnel—than most
state trial courts for handling complex class-action litigation
and for coordinating and disposing of duplicative litigation

26

efficiently See Edward F. Sherman, Class Actions &
Duplicative Litigation, 62 Ind. LJ. 507, §50-51 (1987), see
also Stephen Daniel Kaufmann, Comment, “Federalizing”
Class Actions: The Future of the Jurisdictional Requirements
For Diversity-Based Class Actions, §2 Ala. L. Rev. 1029,
1054 (2001) (noting that federal judges, unlike state-court
judges, generally have access to several law clerks, magistrate
judges and special masters) Among other things, these
resources permit federal judges to focus more attention on
dispositive legal or evidentiary issues, pre-trial motions for
summary judgment, and other developments that may permit
the disposition of cases prior to the expenditure of vast
resources by both sides.

Second, Congress has empowered the federal courts to
coordinate and consolidate cases that raise common factual or
legal questions to promote efficient and just dispute
resolution. See 28 U.S.C. § 1407(a). Specifically, § 1407(a)
provides that “[wJhen civil actions involving one or more
common questions of fact are pending in different [federal
judicial] districts, such actions may be transferred to any
district for coordinated or consolidated pretrial proceedings”
by the judicial panel on multidistrict litigation. Jd Such
transfers are proper where they “will be for the convenience
of parties and witnesses and will promote the just and
efficient conduct of such actions.” Jd As the Manual for
Complex Litigation puts it, “[oJne of the values of
multidistrict proceedings is that they bring before a single
judge all of the cases, parties, and counsel comprising the
litigation,” and “afford a unique opportunity for the
negotiation of a global settlement.” Manual For Complex
Litigation (Third) § 31.132, at 254 (1995); see also Note, The
Judicial Panel and the Conduct of Multidistrict Litigation, 87
Harv. L. Rev. 1001, 1001 (1974) (noting that transfer and
consolidation under § 1407 aimed to “achieve the objectives
of eliminating conflict and duplication and assuring efficient
and economical pretrial proceedings”), Carter G. Phillips et

27

al, Rescuing Multidistrict Litigation From the Altar of
Expediency, 1997 BYU L. Rev. $21, 833 (1997) (hereinafter
Rescuing Multidistrict Lingation) (“{I]n enacting § 1407,

Congress chose to allow judicial efficiency to outweigh
individual convenience...)

The availability of multidistrict litigation (MDL)
proceedings in the federal court system offers several
advantages to parties in complex class actions. For one thing,
this system protects class-action defendants against abusive
procedural tactics employed by plaintiffs’ counsel to run up
the costs of litigation. John A. Beisner & Jessica Davidson
Miller, They're Making a Federal Case Out of It. . . In State
Court, 25 Harv. J.L. & Pub. Pol’y 143, 152-53 (2001).""

MDL proceedings also offer numerous procedural and
practical benefits These include eliminating the need to
conduct multiple productions of documents in several states
and condensing discovery into a national depository in a
single location. Manual For Complex Litigation (Third)
§ 31.131, at 251 (noting that the Judicial Panel considers
requests for MDL “mindful that the objective of transfer is to
eliminate duplication of discovery, avoid conflicting rulings
and schedules, [and] reduce litigation cost”); see also
Rescuing Multidistrict Litigation, at 823 (noting that more
efficient use of pretrial judicial resources outweighs the harm

to litigants).

Yet another class of benefits associated with moving state-
court class actions into MDL includes the advantages that
federal courts may provide to defendants generally. For
example, one commentator has observed that federal courts

"' For example, plaintiffs’ counsel often file nearly identical class
actions before multiple state courts, which results in the proliferation of
duplicative class action litigation in different jurisdictions. Beisner &
Miller, supra, at 152-53. Asa result, defendants have found themselves
litigating concurrently in multiple venues, and incumnng significant
transaction costs. /d. at 153.

28

may be more rigorous with respect to dispositive motions and
admissibility of evidence, particularly scientific evidence and
expert testimony, and that state courts may be more liberal in
terms of discovery and less restrictive with protective
orders.”

* * * * *

For all these reasons, adherence to Rule 82 in this context
will not substantially increase the burdens on federal courts
because, in the vast majority of cases, plaintiffs and their
lawyers will simply forgo broad requests for injunctive relief
rather than subject themselves to federal jurisdiction And
any such cases that do wind up in federal court will be the
very kinds of cases for which the diversity provisions of
Article Ill, and the subsequent diversity statutes, were
designed. From both a procedural and_ institutional
standpoint, federal courts are well suited to handle the
complexities of these large class actions, and allowing them
to do so will enhance justice for all parties by promoting the
efficient and fair resolution of these cases. There simply is no
sound policy reason to depart from the neutrality principle of
Rule 82 by allowing the class-action device artificially to
restrict the scope of federal jurisdiction in cases seeking broad
injunctive relief.

'? Mark P. Robinson, Ass'n of Trial Lawyers of Am., MDL, Class
Actions, and Competing Interests of State Litigation 357 (2001) (CLE).
Similarly. federal courts are authorized under Rule 42 of the Federal Rules
of Civil Procedure to order actions consolidated into a single action
“[w]hen actions involving a common question of law or fact are pending
before the court.” Fed. R. Civ. P. 42(a). Thus, if the class action
defendant can have multiple state-court actions successfully removed and
transferred to a single federal court, such actions could ultimately be
consolidated into a single action before that court under Rule 42. This
would bring organization, efficiency and lower litigation costs to all
involved parties.

-— sel OZ CL

29

CONCLUSION

For these reasons, and those stated in petitioners’ brief, the
judgment of the court of appeals should be reversed.

Respectfully submitted,

JAN S. AMUNDSON CARTER G. PHILLIPS

General Counsel GENE C. SCHAERR*
QUENTIN RIEGEL SUSAN A. WEBER

Deputy General Counsel PAUL J. ZIDLICKY
NATIONAL ASSOCIATION OF MICHAEL S. LEE

MANUFACTURERS PATRICK F. LINEHAN

1331 Pennsylvania Ave., N.W. SIDLEY AUSTIN BROWN &
Washington, DC 20004 Woop, LLP

(202) 637-3000 1501 K. Street, N.W.
Washington, D.C. 20005
(202) 736-8000

Counsel for Amicus Curiae

May 6, 2002 * Counsel of Record

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0531%3A17. Public record. Not legal advice.