How Do You Take Your Multi-State, Class-Action Litigation? One Lump or Two?

The Class Action Fairness Act of 2005, which essentially federalizes all multi-state class-action cases, has introduced the class-action bar, and necessarily the judiciary, to myriad substantive and procedural issues never before envisioned in class-action litigation’s history. While some of these issues have already surfaced, many others haven’t but will as newly federalized multi-state class-action lawsuits move through litigation to the class certification stage. A major and unavoidable issue involves whether federal judges, when deciding multi-state claims’ class certification under Federal Rule 23, may consider well-developed, state class-action jurisprudence applying a single state’s substantive law or whether doing so violates the U.S. Supreme Court’s Erie Doctrine. My Article, after analyzing federal choice-of-law jurisprudence and Erie and its progeny, concludes that federal courts may consider state class-action jurisprudence applying a single state’s substantive law when deciding class certification under Federal Rule 23 and that doing so actually honors Erie’s mandate, albeit in an unanticipated manner. My Article provides guidance to the class-action bar and the judiciary, as they will undoubtedly recognize this issue and its significance when briefing, arguing, and deciding class certification of multi-state, class-action lawsuits