Effort to restrict class action litigation is tabled--for now.

The U.S. Judicial Conference's Committee on Civil Rules has tabled proposed class action rule revisions that would have greatly enhanced federal judges' authority to deny certification for class action lawsuits. However, the idea could be revived later in the rulemaking process.

The proposal would have given federal judges the authority to certify a class for proceedings in one court and in so doing preclude other courts, even state courts, from entertaining other class action suits involving the same class or the same subject matter. It would also have allowed a federal court to deny certification and exercise the same preclusive effect on parallel proceedings. The proposed changes, tabled in June, would have amended Rule 23 of the Federal Rules of Civil Procedure.

ATLA's then-president, Fred Baron, wrote the committee contending that the change would violate the Rules Enabling Act, which authorizes the federal courts to make such revisions to their internal procedures. That law includes an injunction forbidding the courts from abridging or modifying any substantive right currently enjoyed by litigants. Such a change could also violate the Seventh Amendment to the U.S. Constitution, he added.

"Until such time as that conclusion is reached through the courts (conceivably as much as 10 years from now), these proposals would wreak havoc in class action practice," Baron warned. "They would deter attorneys from taking on meritorious cases and, even in cases that are filed, deny access to justice to countless victims of similar widespread harms."

Unfortunately, the committee's action in tabling the measure does not mean it will not be revived at a later date. John Rabiej, a spokesman for the U.S. Judicial Conference, said that the committee plans to "study the idea further" and has scheduled a conference at the University of Chicago to discuss other ways of regulating class action litigation.

One proposed change that survived the June meeting would give federal courts new authority to regulate appointment of counsel in class action litigation, ostensibly to prevent conflicts of interest, and to limit attorney fee awards in such cases.

This proposal would impinge on the traditional role of state courts to regulate the conduct of attorneys, Baron told the panel. "The added threat of having to satisfy separate federal and state standards can easily create confusion for lawyers," he wrote. "It can also facilitate bad faith attempts to use the threat of ethics proceedings to intimidate lawyers for either side."

The revised version of the proposals was expected to be published in the Federal Register for public comment in August.