State of Mississippi Judiciary

Symposium explores class action rule for state courts

June 14, 2004

A panel of plaintiff and defense lawyers, judges and a law professor on Monday spent more than six hours discussing whether the Mississippi Supreme Court should adopt a rule allowing class action litigation, and how to craft such a rule.

Supreme Court Justice Jess H. Dickinson, moderator for the discussion, said, "The purpose of this symposium is for us to have a discussion about the pros and cons of class action litigation in Mississippi."

The Mississippi Supreme Court, which has rule-making authority over the state court system, is considering whether to adopt a class action rule.

Mississippi Supreme Court Chief Justice James W. Smith Jr. told participants and observers, "This court has had this matter under consideration for a few months, along with a few other possible rule changes."

Chief Justice Smith said there won't be quick action by the court. "This will be a long, drawn-out, carefully thought out process."

Justice Dickinson, who is a member of the Supreme Court Rules Committee, said, "We need more information."

Justice Dickinson assembled a panel that includes plaintiff lawyers who have pursued class action litigation, defenses lawyers who have represented clients who have been sued in class actions, representatives of two corporations who have been sued in class actions, three state trial judges and a law professor.

Panelists include attorneys Larry Abernathy, Don Barrett, Rep. Edward Blackmon, Wayne Drinkwater, Richard Freese, William Goodman Jr., Larry Jones, Fred Krutz, William Leech, Keith Raulston and Richard Scruggs; 1^st Circuit Court Judge Sharion Aycock of Fulton; 21^st Circuit Court Judge Jannie Lewis of Lexington; 22^nd Circuit Court Judge Lamar Pickard of Hazlehurst; corporate class defendants Gary Garfield of Bridgestone/Firestone North American Tire and Robert Neaton of General Motors; and Professor Jeffrey Jackson of the Mississippi College School of Law.

Panelists were divided over whether there is a need for a class-action rule.

Several panelists said a class action rule could be used, among other things, in consumer litigation to benefit plaintiffs with small claims but who could not afford to bring suit alone.

Lexington plaintiff attorney Don Barrett said, "Mississippi needs to add a class action rule. For a wrong,there must be a remedy....We have a situation now where there are wrongs without a remedy."

Plaintiff attorney Richard Scruggs of Oxford said Mississippi is the only state which does not have some kind of class action rule. "There is no justifiable reason that the citizens of Mississippi shouldn't have the same rights and remedies of every other state and the federal courts," Scruggs said. "We are leaving Mississippi consumers, Mississippi residents who are generally poor and vulnerable to consumer abuse and business abuse (with problems) which would otherwise go unaddressed," Scruggs said.

Plaintiff attorney Richard Freese of Birmingham said, "There are many cases that would never have their day in court without a class action device."

Attorney Fred Krutz of Jackson, who has represented defendants in mass tort litigation, said, "It struck me that perhaps the proponents of a class action rule may be looking for a new procedural way to aggregate hundreds of mass tort cases in a venue of choice. Properly applied, a class action rule would not allow certification of mass tort cases."

Gary Garfield, vice president, general counsel and secretary of Bridgestone/Firestone North American Tire, said, "You can't have a class action in a mass tort. You are affecting the substantive rights of not only the defendant, but the substantive rights of unrepresented class defendants."

Laurel attorney Larry Abernathy, whose practice involves representation of plaintiffs, suggested that if the Supreme Court decides to adopt a class action rule, it should be similar to Rule 23 of the Federal Rules of Civil Procedure, the federal class action rule. Abernathy said, "We don't need to reinvent the wheel. We need to have a mechanism to bring actions before the court that involve numerous people."

Jackson attorney Wayne Drinkwater, who has defended class action litigation, said, "Virtually every federal court has concluded that a class action procedure by whatever name will not work for individual plaintiff tort cases." Drinkwater said a rule similar to the federal Rule 23, if properly applied, "would deal with problems we don't have much of, but would not deal with problems we do have a lot of."

Defense attorney Keith Raulston of Jackson said, "Adopting a class action rule in state court would be fraught with problems." Raulston urged the court "not to create new litigation, but manage the litigation we already have."

Numerous panelists suggested that the court might consider adopting a provision for multi-district litigation to deal with lawsuits which do not fit within the limitations of a class action rule.

The federal courts use multi-district litigation to consolidate similar cases against one defendant or group of defendants for resolution of pretrial issues. The cases are sent to one judge to decide pretrial issues. If the cases proceed to trial, they go back to judges in the districts in which they were filed.

Rep. Edward Blackmon of Canton said he opposes adoption of a class action rule modeled on federal Rule 23. "I hope we stay as far away from the Rule 23 as we can." Blackmon said, "Instead, I think our focus ought to be on an intrastate MDL."

Jackson defense attorney Larry Jones said he does not see a need for a class action rule. "MDL is the 300-pound gorilla that has been sitting in this room all day," Jones said. "Class action will not solve that. MDL may. I'm 100 percent in favor of MDL."

Justice Dickinson said he doesn't advocate a position with regard to a class action rule. "My only hope is that whatever we do, it serves the purpose of making the judicial system better, not worse."

The symposium was sponsored by the Mississippi Supreme Court, the Court of Appeals and the Mississippi College School of Law. The Mississippi College School of Law offered continuing legal education credit for the symposium. More than 40 attorneys who attended the symposium applied for continuing legal education credit.

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