Attorney Reports on the Impact of

Amchem and Ortiz on Choice of a Federal or State

Forum in Class Action Litigation

A Report to the Advisory Committee on Civil Rules

Regarding a Case-based Survey of Attorneys

Thomas E. Willging

Shannon R. Wheatman

C E N T E R

April 2004

Federal Judicial Center

This study was undertaken at the request of the Judicial Conference’s Advisory

Committee on Civil Rules and is in furtherance of the Center’s statutory mission to

conduct and stimulate research and development for the improvement of judicial

administration. The views expressed are those of the authors and not necessarily those

of the Advisory Committee or of the Federal Judicial Center.

The project team included George Cort, Vashty Gobinpersad, Tyeika Hartsfield,

Andrea Henson-Armstrong, Maria Estelita Huidobro, Dean Miletich, Robert Niemic,

and Robert Timothy Reagan.

Includes May 2004 update
Update

Add the following to p.39, after the first full paragraph and before subsection (d):

Nor was the proportion of monetary recoveries devoted to attorney fees different

in a statistically significant way in state and federal court in removed and remanded

cases. In the remanded cases, the typical state court awarded 30% of the total monetary recovery as attorney fees; the typical federal court awarded 25%. The average

award was 27% in cases remanded to state courts and 29% in cases removed to and

retained in federal courts.
Attorney Reports on the Impact of Amchem and Ortiz on Choice of Forum in Class Action Litigation

FJC Report to the Advisory Committee on Civil Rules, April 2004

iii

Contents

Background 1

Executive Summary 4

Overall conclusions regarding Amchem and Ortiz factors 4

Summary of findings 5

Results from the Class Action Survey 11

1. Attorney reports of the effects of Amchem and Ortiz on choice of forum 11

(a) Plaintiff attorney reports on reasons for filing the named cases in federal or state

courts 11

(b) Comparison of plaintiff and defendant attorney reports of reasons for choosing to

file the named case in, or remove it to, federal court 18

(c) Attorney reports of the effects of Amchem and Ortiz on the named case and in

general 20

(d) Plaintiff and defendant attorney reports about any relationship between client

characteristics and filing and removing decisions 22

2. Competing or overlapping class actions filed in other courts 26

3. Plaintiff and defendant attorneys’ perceptions of state and federal judges’

predispositions toward plaintiff and defendant interests 28

(a) Attorneys’ perception of judicial predispositions 28

(b) Substantive law, procedural rules, and judicial receptivity as sources of attorney

impressions of perceived judicial predispositions 30

4. Comparison of rulings by state and federal courts in removed cases 33

(a) Rulings on class certification 34

(b) Rulings in cases not certified as class actions 36

(c) Procedural outcomes of certified class actions 37

(d) Perceptions, class size, and monetary recoveries and settlements 39

(e) Summary 40

5. Procedural outcomes and monetary recoveries and settlements in named cases

(removed and not removed) 41

(a) Certification for settlement or trial and litigation 41

(b) Outcomes of certified and noncertified cases compared 43

(c) Monetary and nonmonetary recoveries and settlements 44

(d) Attorney fees and expenses 46

(e) Summary 46

(f) Conclusions 46

Appendix 47

 Methods Appendix 49

 Regression Methods and Results 57

 Questionnaire Appendix 73
Blank page inserted for correct pagination

when printing double-sided copies.
Attorney Reports on the Impact of Amchem and Ortiz on Choice of Forum in Class Action Litigation

FJC Report to the Advisory Committee on Civil Rules, April 2004

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Background

In 2001, the Advisory Committee on Civil Rules (“the Committee”) asked the Federal

Judicial Center to conduct empirical research in an attempt to gain information that

might assist the Committee’s examination of whether Federal Rule of Civil Procedure

23 should be amended to provide a different certification standard for classes certified

for settlement rather than for trial and litigation. After researching class action filing

rates,1

 the Center designed and conducted a survey of attorneys who had represented

clients in recently terminated class action litigation.

In both state and federal courts, many class actions have been resolved by

certification for settlement. In class action litigation that is characterized by multiple

filings in state and federal forums, such as mass tort cases, the ability to certify cases

for multistate or nationwide settlement is viewed as important to achieving a broad

resolution of the litigation. In 1996, the Committee published for public comment a

proposed amendment to Rule 23 that would have permitted certification of a

settlement class action “even though the requirements of subdivision (b)(3) might not

be met for purposes of trial.”2 The Committee deferred consideration of the proposed

amendment after the Supreme Court granted certiorari in Amchem Products, Inc. v.

Windsor3

 and later in Ortiz v. Fibreboard Corp.4 In those cases, the Court held that

under Rule 23 a court could not certify a class for settlement unless the class met all of

the Rule 23(a) criteria and one of the Rule 23(b) criteria, with the exception of trial

 

1. In September 2002, the Center presented to the Committee the results of a related study, also

requested by the Committee, of the effect of the Amchem and Ortiz decisions on the filing of class actions

in federal courts. See Bob Niemic & Tom Willging, Effects of Amchem/Ortiz on the Filing of Federal Class

Actions: Report to the Advisory Committee on Civil Rules (2002) (available at http://www.fjc.gov). That

study reported that the rate of filing of class actions in federal court had increased after Amchem and

Ortiz. That study does not—and could not—directly answer the question whether those two decisions

have had an impact on the settlement of class actions in federal court or whether there is any relationship

between the Court decisions and attorney–client decisions on where to file cases. For example, those two

cases may have influenced attorneys’ decisions in a limited number of specific types of cases; also, the

number of federal class action filings might have increased at a slower rate than state class action filings.

2. Proposed Amendments to the Federal Rules of Civil Procedure, 167 F.R.D. 559 (1996); see also id.

at 563–64 (Proposed Committee Note).

3. 521 U.S. 591 (1997). In Amchem, the Supreme Court affirmed a Third Circuit decision that

vacated the order of the district court certifying a class of individuals with asbestos injury claims against a

number of defendants and approving a Rule 23(b)(3) opt-out settlement. The district court had combined

in one class action claimants with present asbestos injuries and future claimants (absent and unknown)

who had been exposed to an asbestos product but who had not to date discovered an asbestos-related

injury. The Court held that the district court’s ruling had allowed settlement of a “sprawling” class action

that failed to provide future claimants the adequate representation required by Rule 23(a)(4).

4. 527 U.S. 815 (1999). In Ortiz, the Court reversed a Fifth Circuit decision that had affirmed an

asbestos settlement with similar features to those the Court criticized in Amchem. The settlement in Ortiz,

however, focused on a single manufacturer of products containing asbestos and used a mandatory

“limited fund” settlement class certified under Rule 23(b)(1)(B).
Attorney Reports on the Impact of Amchem and Ortiz on Choice of Forum in Class Action Litigation

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manageability for a (b)(3) class. The rulings restricted the ability of federal courts to

certify settlement class actions.

In Amchem, the Court noted the Committee’s pending “settlement class” proposal

and stated that, although parts of the Court’s ruling were rooted in due process

concerns about notice, the holding on certification standards was limited to Rule 23

“as it is currently framed.”5

 Since the Supreme Court decisions, the Committee has

continued to receive proposals to amend Rule 23 to relax the certification standard for

settlement classes—proposals that emphasize the importance of such class actions to

achieving the broad resolution of repetitive litigation.6

 The Committee has also

continued to receive advice that the problems of such a rule amendment would

outweigh any benefits that facilitating settlements might provide.7

As part of its examination of proposals to amend Rule 23 to provide a separate

settlement class certification standard, the Committee asked the Center to assist by

providing empirical information, if possible, as to the effect of Amchem and Ortiz on

class action litigation in federal courts. The Center, in consultation with the

Committee, designed a survey of attorneys in class actions recently terminated in

federal courts. Questionnaires were designed to provide data on whether the Supreme

Court decisions restricting certification of settlement classes in federal courts under

existing Rule 23 influenced attorneys to file and litigate such actions in state courts.

The survey also sought information on the extent to which limits on certification of

settlement classes affected the number of overlapping or duplicative class actions

pending simultaneously in state and federal courts.

This report is based on analyses of responses to questionnaires (copies of which

can be found in the Questionnaire Appendix accompanying the full report) returned

by 728 attorneys, 312 (43%) representing plaintiffs and 416 (57%) representing

defendants in 621 class actions (see the Methods Appendix accompanying the full

report). These class actions were either filed in federal court or removed to federal

court between 1994 and 2001 and terminated between July 1, 1999, and December 31,

2002. In 107 of the 621 cases, we received responses from attorneys for both sides.8

The response rate was 39% of 1,851 attorneys. Attorneys were asked to report

information about a specific case in which they had represented a party (the “named

 

5. Amchem, 521 U.S. at 619.

6. See, e.g., Francis McGovern, Settlement of Mass Torts in a Federal System, 36 Wake Forest L. Rev.

871, 878 (2001) (stating that “Amchem and Ortiz have changed the practical landscape for the global

resolution of personal injury mass tort litigation by making class action settlements more expensive and,

in certain circumstances, improbable”). According to Professor McGovern, a change in Rule 23 to

facilitate settlement class actions for all types of cases is one way to address the problem. Id. at 882

(asserting that “[t]here will be efforts to facilitate class action settlements by relaxing the 23(a)

prerequisites and, at the same time, strengthening 23(e) scrutiny”).

7. For discussion of some of the arguments against global class action settlements and settlement

class rules in the pre-Amchem legal environment, see generally, Symposium, Mass Tortes: Serving Up Just

Desserts, 80 Cornell L. Rev. 811 (1995).

8. All responses were used for analyses based on attorney reports (Parts 1 and 3). For analyses done

at the case level (Parts 2, 4, and 5), if two responses referred to the same case, each response was given a

weight of 0.5.
Attorney Reports on the Impact of Amchem and Ortiz on Choice of Forum in Class Action Litigation

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case”). We selected the named cases from the database used for the Center’s earlier

report to the Committee on class action filing activity.

The report identifies factors that attorneys reported—with the benefit of

hindsight—as related to their decisions about where to file or whether to remove a

class action, and it presents data concerning attorney perceptions of the relative

importance of those factors. Questions called for numerous attorney judgments about

whether individual factors might have influenced that attorney’s total assessment of

differences between state and federal courts in handling class action litigation.

Unless specified as not statistically significant, all differences discussed in this

report were statistically significant. By statistically significant we mean significant at

the .05 level or better (i.e., the probability that the differences occurred by chance is at

most 5%). 
Attorney Reports on the Impact of Amchem and Ortiz on Choice of Forum in Class Action Litigation

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Executive Summary

Overall conclusions regarding Amchem and Ortiz factors

The Committee’s primary question was whether existing Rule 23, as interpreted and

applied in the Amchem and Ortiz line of cases to restrict class certification for

settlement class actions, induced attorneys to file and litigate class actions in state

rather than federal court. This study supports the following empirical conclusions

based on attorney reports regarding specified cases:

• neither Amchem and Ortiz nor federal class certification rules were reported to

have directly affected the vast majority of plaintiff attorneys’ choice of forum;

• defendant attorneys reported their perceptions that federal courts’ strict

application of class certification rules was one factor that affected their

decision to remove cases to federal courts, which would not be likely to avoid

any effects of Amchem and Ortiz;

• in less than 10% of the cases, Amchem and Ortiz factors may have been related

to attorneys’ choice of forum and to how courts managed class actions;

• despite attorneys’ perceptions that federal judges were less receptive than state

judges to motions to certify class actions, federal and state judges were almost

equally likely to certify class actions and to certify those cases for litigation

and trial or for settlement;

• federal and state judges were equally likely to approve class settlements;

• federal judges were more likely than state judges to deny class certification,

while state judges were more likely than federal judges to not rule on

certification;

• the reported size of certified classes tended to be larger in state courts, but no

direct link to Amchem and Ortiz was found and we could not directly test

speculation that Amchem and Ortiz may have driven the larger classes into

state court where they could be settled more easily;

• the rate at which proposed class actions were reported to have been certified

appears to have declined when compared to a Federal Judicial Center preAmchem and Ortiz study of class actions in four federal districts;

• based on the same study, the percentage of certified class actions that were

reported to have been certified for settlement appears to have increased after

Amchem and Ortiz; and

• the percentage of class recoveries reported to have been allocated to attorney

fees appears to have been about the same as in the previous Center study.
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Summary of findings

1. Attorney reports of the effects of Amchem and Ortiz on choice of

forum

(a) Plaintiff attorney reports of reasons for filing the named case in federal

or state court

We presented plaintiff attorneys a range of questions and statements to find out why

they filed the named case in state or federal court. Three factors were strongly related

to their decisions about where to file: widely shared attorney perceptions that state or

federal judges were predisposed to rule on certain claims in line with the interests of

the attorney’s client; attorney reports of the source of law (state or federal) for the

claims; and attorney reports of “state facts,” a composite measure we created, using

the average of the percent of class members who resided in the state and the percent of

claims-related transactions or events that attorneys reported having occurred within

the state.9

Attorneys’ decisions regarding where to file were associated with other factors, but

not as strongly as with those above. The strongest group of additional factors

encompassed the substantive law and the discovery rules governing the case. Those

factors were also related to attorney perceptions of judicial predisposition. Plaintiff

attorneys did not report that either class certification rules in general or the Amchem

and Ortiz holdings in particular had any direct impact on their choice of a state or

federal forum.

We also found that the filing of a class action in state or federal court was strongly

associated with the location of a competing or overlapping class action.

(b) Comparison of plaintiff and defendant attorney reports of reasons for

choosing to file the named case in, or remove it to, federal court

We presented a similar set of statements to defendant attorneys so they could indicate

why they removed the named case, and we compared their responses to those of

plaintiff attorneys who also chose a federal forum. Defendant attorneys more often

than plaintiff attorneys cited their expectations that federal courts would apply class

certification rules strictly and that substantive law, discovery rules, and expert

evidence rules would favor their side. Aside from the importance defendant attorneys

attributed to stringent class certification rules in general, Amchem and Ortiz factors

 

9. The portion of the “state facts” variable that deals with the location of claims-related transactions

or events depends on the ability of a responding attorney to distinguish between events (such as the

purchase of a product) that may have occurred both within the state of filing and in a number of other

states. For further discussion of the “state facts” variable see the full text of this report at infra notes

19–20.
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limiting federal courts’ ability to certify a class for settlement did not appear to have

played a role in either side’s decision to select a federal forum. In general, a defendant

attorney was far more likely than a plaintiff attorney to refer to the attorney’s personal

preferences or to client preferences as a basis for a decision to select a federal forum.

(c) Attorney reports of the effects of Amchem and Ortiz on the named case

and in general

We also posed direct questions to attorneys about any effects Amchem and Ortiz may

have had on their decisions about where to file or litigate the named cases and on class

action litigation in general, including case management. Attorneys’ responses suggest

that, at most, the two decisions may have had a relationship to the attorneys’ choice of

forum and to case management in a small percentage of the named cases. Overall, as

discussed in Parts 1(a) and (b), attorneys’ statements as to why they filed cases in state

or federal courts did not independently generate a conclusion that the Amchem and

Ortiz decisions played an important role. Viewed in the aggregate—that is, in the

context of the many factors that might have been associated with choice of

forum—attorneys reported perceptions that Amchem and Ortiz factors had an impact

on a small proportion of cases.

Nonetheless, attorney responses to the direct Amchem and Ortiz questions provide

some support for the conclusion that the cases have had some relationship with class

action certification and settlement. Our findings in that regard appear to be limited to

a small proportion of the cases covered in the survey, less than 10% of which

generated reports of some link with the two decisions.

Attorneys’ opinions about the impact of Amchem and Ortiz indicate that they

expected the two cases to have had more of an impact than their collective reports

show they had in the named cases. Forty-three percent (43%) said that Amchem and

Ortiz had made it more difficult in general to certify, settle, and/or maintain class

actions in federal and state courts; another 5% thought the two cases had such an

impact, but only in mass tort cases.

(d) Plaintiff and defendant attorney reports about any relationship between

client characteristics and filing and removal decisions

We also asked plaintiff and defendant attorneys about characteristics that might have

described their clients (such as place of residence, type of business, gender, race, and

ethnicity) and whether, at the time of filing or removing an action, they perceived any

litigation advantage or disadvantage arising out of any of those characteristics. None

of the differences appeared to be related to choice of a federal or state forum. We

found few important differences in reports of advantages or disadvantages based on

party characteristics. The majority of attorneys reported that they perceived no

advantage or disadvantage in most of their clients’ characteristics.
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Comparing perceptions of plaintiff attorneys who filed in state courts with those

who filed in federal courts, the only salient client characteristics were connected to the

defendant’s type of business and the proposed class representative’s local residence

and reputation. The class representative’s local residence appeared to be the factor

with the strongest association with a plaintiff’s decision to file a class action in a state

court.

Comparing perceptions of plaintiff attorneys with those of defendant attorneys

(regardless of the choice of forum), the only client characteristic that elicited a

majority response was that plaintiff attorneys tended to see the proposed class

representative’s local residence as an advantage. Other client characteristics (e.g.,

defendant’s corporate status or type of business) produced different responses from

plaintiff and defendant attorneys.

2. Competing or overlapping class actions filed in other courts

A clear majority of attorneys reported the existence of other lawsuits dealing with the

same subject matter as the named case in other state or federal courts. Those attorneys

also indicated that about three-fourths of the other lawsuits were resolved in the same

manner as the named case. Among the remaining cases, we found that when the

named case was dismissed on the merits, voluntarily dismissed, or terminated by

summary judgment (and not resolved as a class action), the related cases were more

likely to have had a different outcome. Those data suggest that rulings on the merits of

individual claims did not prevent further litigation in other courts in related cases.

3. Plaintiff and defendant attorney perceptions of state and federal

judges’ predispositions toward plaintiff and defendant interests

(a) Attorney perceptions of judicial predispositions

Attorneys on both sides of the litigation reported their expectations about judicial

predispositions at the time they filed or removed the named case. Those impressions

were often related to lawyers’ judgments about the favorability of that court’s rules and

the substantive law applicable to their clients’ claims and defenses, and to attorneys’

impressions of judicial receptivity to claims like those of their clients.

About half of the plaintiff attorneys who filed cases in state courts expressed an

impression that state judges were more likely than federal judges to rule in favor of

interests like those of their clients. About one in four plaintiff attorneys who filed in

federal court, though, expressed an expectation that federal judges were more likely

than state judges to rule in favor of their clients’ interests, and about 40% of plaintiff

attorneys filing in federal court reported that they perceived no difference between

state and federal judges in that regard.

Three out of four defendant attorneys who removed cases to federal courts

reported the impression that federal judges were more likely than state judges to rule
Attorney Reports on the Impact of Amchem and Ortiz on Choice of Forum in Class Action Litigation

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in favor of interests like those of their clients. About 20% of attorneys perceived no

difference between the two sets of judges.

(b) Substantive law, procedural rules, and judicial receptivity as sources of

perceived judicial predispositions

Plaintiff attorneys were more likely to perceive judicial predispositions in favor of

their clients’ interests when they also reported that state substantive law and state

discovery, evidence, and class action certification rules favored their clients’ interests.

Those plaintiff attorneys were also more likely than other plaintiff attorneys to report

that state court judges were more receptive than federal judges to motions to certify a

class and more receptive to their clients’ claims on the merits.

In reporting their impressions of judicial predispositions, defendant attorneys

presented almost, but not exactly, a mirror image of plaintiff attorneys. Defendant

attorneys who removed cases to federal courts were more likely to perceive federal

predispositions in favor of their clients’ interests when they also reported that federal

discovery, expert evidence, and general evidentiary rules favored their clients’

interests. Those defendant attorneys were also more likely than other defendant

attorneys to report that federal judges were less receptive than state judges to motions

to certify a class and more receptive to their clients’ positions on the merits. Defendant

attorneys who perceived federal judicial predispositions, however, were no more likely

than other defendant attorneys to report that federal substantive law was favorable to

their clients’ interests.

In the next two sections we explore how those perceptions in individual named

cases matched up with the aggregate of judicial rulings, procedural outcomes, and

monetary recoveries and settlements in two groups of named cases: first, those

removed from federal courts and, in the final section, all of the named cases.

4. Comparison of rulings by state and federal courts in removed

cases

In Part 1(a) we reported that attorney perceptions of judicial predispositions toward

interests like those of the attorneys’ clients represented one of the strongest factors

affecting choice of forum. Do these attorney perceptions about judicial predispositions

have any basis in the reality of judicial rulings in the named cases viewed as a whole?

We found little relationship between the attorneys’ perceptions and federal and

state judicial rulings in the named cases. Federal district judges remanded to state

court almost half of the cases that defendants removed to federal court, providing an

opportunity to compare rulings in the two sets of courts.10 We found federal and state

 

10. Note that our comparison of the two sets of cases proceeds on the assumption (untestable in the

context of this survey) that district judges’ decisions to remand were based on the presence or absence of

federal subject-matter jurisdiction and were not affected one way or the other by the certifiability of the

case as a class action or by the underlying merits of the claims presented.
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judges about equally likely to certify cases as class actions (which happened in 22% of

the remanded cases and 20% of the cases retained in federal courts). Moreover, federal

and state judges were about equally likely to certify classes for trial and litigation or

for settlement: Half of the certifications in each set of courts were for trial and

litigation and half were for settlement.

In the attorney reports about the named cases, federal judges were more likely

than state judges to issue rulings denying class certification, while state judges were

more likely than federal judges to take no action regarding class certification. Neither

the action or inaction of courts regarding class certification was associated with

whether a case produced a monetary recovery or settlement. A ruling denying class

certification usually was accompanied by explicit resolution of the individual claims of

the proposed class representatives, whether the resolution was by settlement,

summary judgment, or trial. The absence of a ruling on class certification was more

often accompanied by voluntary dismissal of the claims.

In the named cases, we found no statistically significant differences in rulings on

dispositive procedural motions in cases remanded to state courts and in cases retained

in the federal courts. In certified class actions, state and federal courts were equally

likely to approve a classwide settlement. In one or two instances in federal or state

court the settlement had been revised before court approval; no class settlement was

rejected in total.

We also found, in removed cases, a relationship (again, not necessarily a causal

relationship) between attorneys’ perceptions of judicial predispositions and whether

the parties’ class settlements included a money recovery—and, if so, how much.

Attorney fees also varied in the same direction as the predisposition perceived by

attorneys; that is, fees were higher when plaintiffs perceived a predisposition in their

favor than when they did not perceive such a predisposition.

Despite the similarities in rulings, monetary recoveries—almost always in the form

of settlements fashioned by the parties—differed in the two court systems. In removed

cases that were remanded to state courts, the amount of classwide monetary recoveries

and settlements was substantially larger than monetary recoveries and settlements in

cases retained in federal court. The median recovery in state court was $850,000 and

in federal court was $300,000. Those differences, however, appeared to be a product

of the larger size of classes resolved in state courts (typically, 5,000 class members

compared to 1,000 in federal courts). The typical recovery per class member turned

out to be higher in federal court: $517 in federal court compared to $350 in cases

remanded to state courts.

We also found a relationship between class size and attorney perception of

predispositions. Attorneys were somewhat more likely to perceive federal court

predispositions to favor client interests in cases with a smaller class size and to

perceive favorable state court predispositions toward such interests in cases with a

larger class size. These differences seem marginal, however, and applicable to a small

number of cases.
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5. Procedural outcomes and monetary recoveries and settlements in

named cases (removed and not removed)

Looking at the total sample of all closed cases (including cases filed as original federal

class actions, not just the removed cases discussed in Part 4), we found that in the

majority of cases (57%) the court took no action on class certification. Courts certified

24% of the cases as class actions and denied certification in 19% of them. Of the

certified cases, 58% were certified for settlement and 42% were certified for trial or

litigation.

The Center’s 1996 research for the Committee, focusing on class actions

terminated in 1992–1994 in four federal district courts, and based on examination of

court files, not attorney recollections, reported a class certification rate of 37%. The

percentage of those cases certified for settlement was 39%. While the study methods

were different, comparing data from the current study and the 1992–1994 study

indicates that the rate of class certification as a whole most likely has not increased

and appears to have declined (from 37% to 24%) in the period after Amchem and

Ortiz. These two studies also indicate that the percentage of class actions certified for

settlement appears to have increased (from 39% to 58%).

In the study at hand, in both state and federal courts, certified class actions

generally terminated with settlements and monetary recoveries. Almost all certified

class actions settled. In contrast, most cases that were never certified terminated by

dismissal, summary judgment, voluntary dismissal, or settlement of class

representatives’ claims.

In state and federal courts combined, about one in four of the named cases

included a monetary recovery or settlement for the class. The typical (i.e., median)

recovery was $800,000. Twenty-five percent (25%) of the recoveries and settlements

exceeded $5.2 million, and 25% were $50,000 or less.

Various commentators and judges have criticized the use of coupons—especially

nontransferable coupons without any market value—to settle class actions. In the

study, 29 of 315 cases (9%) with a recovery included some type of coupon in the

recovery; 3 of those cases (1%) involved nontransferable coupons.

Attorney fees typically were about 29% of the class recovery, which was about the

same percentage as in the prior FJC study of class actions. Twenty-five percent (25%)

of the cases involved fees of 36% or more, which was also similar to what we found

previously.
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Results from the Class Action Survey

1. Attorney reports of the effects of Amchem and Ortiz on choice of

forum

To examine whether the Amchem and Ortiz decisions have had any relationship with

attorney–client decisions on where to file class actions, we had to ask a more

fundamental question: What factors influence attorneys’ decisions to file class actions

in state versus federal courts? A literature review reinforced our understanding that a

host of factors are likely to influence such decisions. One researcher found, for

example, that attorneys give “quite diverse” reasons for forum selection, citing “as

many as fifteen or twenty different factors” when responding to surveys of forum

selection choices.11 Attorneys cited “geographic convenience, fear of local bias,

superior rules of procedure, case delay, judicial competence, litigation costs, favorable

or unfavorable precedent, higher damages awards, jury pool differences, better rules of

evidence, greater judicial pretrial involvement, and selection choice made by client or

referring attorney.”12 In addition, in diversity cases attorneys indicated that “attorney

habit, convenience, and case delay” were the primary factors affecting their choice of

forum.13

(a) Plaintiff attorney reports on reasons for filing the named cases in federal

or state courts14

We investigated why plaintiff attorneys file class actions in state or federal court by

conducting multivariate analyses of a wide range of variables covered in our

questionnaire. These analyses allow us to look at the relationships between pairs of

variables while controlling for the effects of other variables.

We concentrated on factors we expected to be correlated with attorneys’ choice of

forum and analyzed responses from plaintiff attorneys who filed proposed class action

lawsuits in state court and plaintiff attorneys who filed such suits in federal court.15

The Regression Methods and Results Appendix presents a more complete description

of these analyses. Note that we used a very restrictive approach on the data in the

 

11. Neal Miller, An Empirical Study of Forum Choices in Removal Cases Under Diversity and Federal

Question Jurisdiction, 41 Am. U. L. Rev. 369, 382 (1992).

12. Id.

13. Id. at 383.

14. The analyses in this subsection, but not in other parts of this report, excluded 72 cases that had

been removed to federal court but remanded to state court or dismissed for lack of federal jurisdiction.

The reason for excluding these cases was that the lack of federal jurisdiction suggested that the plaintiff

attorney did not have a meaningful choice of forum.

15. We were unable to examine defendant attorneys’ reasons for removing cases to federal court or

choosing to litigate such cases in state courts because we were unable to identify a source of information

about cases in which defendants chose to remain in state court.
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multivariate analyses and therefore some of the reported frequencies in this section are

different from those reported in sections using other analyses.16

Various factors might play a role in an attorney’s choice of forum. Factors include

case characteristics (e.g., number of class members, amount in controversy, nature of

suit), perceived advantages in a particular forum (e.g., applicable law, convenience,

rules, judicial receptiveness, costs and fees, and strategy), and attorney experience

(e.g., type of practice, type of clients, years of experience). Table 1 describes the

factors our analyses found to be associated with attorneys’ choice of forum, beginning

with the three factors that turned out to be the most strongly associated.

Table 1: Factors reported to have influenced plaintiff attorneys’ choice of

forum

Factor Description of Factor in Questionnaire*

Judicial predisposition

(toward client interests)**

Attorneys’ impression of any predisposition of state or federal judges

toward interests like their clients (Question 23)

Source of law** Attorneys’ estimate of proportion of claims based on state or federal law

(Question 1)

State facts** The average of the percent of class members residing in the state

(Question 4) and the percent of claims-related events that occurred in

the state where the class action was filed (Question 5)

Substantive law Substantive law was more favorable to our case (Question 21)

Discovery rules Discovery rules were more favorable to our case (Question 21)

Judicial receptiveness (to

merits of claims)

Judges in state or federal court are generally more receptive to the

claims on the merits (Question 21)

Location of court The location of the court was more convenient for us, our clients, or

witnesses (Question 21)

Cost of litigation The cost of litigation would be lower (Question 21)

Jury award A jury award would be higher (Question 21)

Other cases Similar cases were filed in state or federal court (Question 19)

Percent of federal civil

litigation

Percent of attorney’s workload devoted to civil litigation in federal court

during the past five years (Question 33)

Number of state class actions Number of class actions attorney filed in state court in the past three

years (Question 31)

*Question numbers refer to the questionnaires addressed to plaintiff attorneys, which are in the

Questionnaire Appendix. Note that Question 21 asked attorneys directly about their reasons for choosing

a state or federal forum. Other questions asked attorneys to describe particular aspects of the named case.

**These three factors were by far the strongest reported influences. See discussion below.

 

16. In the multivariate analyses we chose to limit our analyses to cases where there were no missing

values for any of the variables in question. This reduced the total number of responses in the analyses.

See the “Regression Methods and Results” section of the Methods Appendix for a more detailed

description of how we eliminated missing data.
Attorney Reports on the Impact of Amchem and Ortiz on Choice of Forum in Class Action Litigation

FJC Report to the Advisory Committee on Civil Rules, April 2004

13

Primary factors reportedly influencing plaintiff attorneys’ choice of forum

There are three factors that appear to have the greatest connection with where

attorneys filed their cases: (1) perceptions of judicial predispositions to rule for one

side or the other; (2) attorney reports of the source (state or federal) of the law

supporting the claims; and (3) attorney reports of the percentage of class members

residing in, and claims-related events originating in, the state in which the case was

filed (which we call “state facts”). These three factors proved to be closely related to

attorneys’ choice of forum.

Perception of judicial predispositions. Attorneys indicated whether they perceived

that state or federal judges had any predisposition toward ruling in favor of interests

like those of their clients.17 Attorneys tended to file in the jurisdiction they thought

would be predisposed to their clients’ interests. Forty percent (40%) of attorneys filing

in state and federal court reported that they perceived a state judicial predisposition.

Thirty-two percent (32%) of attorneys filing in federal court and 4% of attorneys filing

in state court reported that they perceived a federal judicial predisposition. A number

of attorneys (28% filing in federal court and 56% filing in state court) reported that

they perceived no differences between state and federal judges. See Part 3(b) for

further discussion of the sources of these perceptions.

Source of law. We asked attorneys to estimate the proportion of claims in the

named case that were based on federal or state law. Most attorneys reported that their

cases had a majority of state claims: 83% of attorneys filing in state court and 59% of

attorneys filing in federal court reported a majority of state claims. Twenty-five

percent (25%) of attorneys filing in federal court and 5% of attorneys filing in state

court reported a majority of federal claims. Sixteen percent (16%) of attorneys filing in

federal court and 13% of attorneys filing in state court reported an equal number of

both state and federal claims. It is interesting to note that 13% of plaintiffs who filed

cases originally in federal court reported that the named case involved the laws of

many states.18 Comments from attorneys in a few instances indicated that they

sometimes filed a case in federal court because they wanted to pursue a federal claim

and knew that a single federal claim would allow a defendant to remove the case to

federal court.

State facts. We also asked attorneys to estimate the percentage of class members

residing in the state and the percentage of claims-related events that occurred in the

state where the class action was filed.19 Attorneys filing in federal court reported a

 

17. In another analysis, reported in Part 3(b), Tables 8 and 9, we report that such predispositions are

related to attorneys’ judgments or intuitions about factors such as the relative strictness of applicable class

certification rules, judicial receptivity to motions to certify a class or to the merits of claims or defenses,

and the impact of other system-wide court rules, such as those relating to discovery or evidence. Attorney

judgments about the favorability of substantive law are also related, but to a lesser degree, to their

impressions about judicial predispositions.

18. We did not ask that exact form of Question 21 of plaintiff attorneys who filed named cases

originally in state court.

19. Questions 4 and 5 provide the underlying support for the “state facts” variable (see

Questionnaire Appendix). Question 4 asks for “the percentage of claims-related transactions/events [that]
Attorney Reports on the Impact of Amchem and Ortiz on Choice of Forum in Class Action Litigation

FJC Report to the Advisory Committee on Civil Rules, April 2004

14

greater percentage of class members residing outside the state of filing than attorneys

filing in state court (51% v. 28%) as well as a higher percentage of claims-related

events occurring in multiple states (34% v. 26%). These data suggest that attorneys

tend to file in federal courts cases with factual and legal issues implicating a larger

number of states and tend to file in state courts cases with factual and legal issues

implicating a smaller number of states.

Similarly, federal courts appear to have received more proposed class actions with

multistate class membership than state courts. About 71% of attorneys filing in federal

court reported class members resided in more than two states, compared with 41% of

attorneys filing in state courts. Similarly, 34% of attorneys filing in federal court

reported having class members from all 50 states, compared with 19% of attorneys

filing in state court who so reported.

We computed a composite variable, called “state facts,” by taking the average of

the percentage of class members who resided in the state where the class action was

filed and the percentage of claims-related events that occurred in the state where the

class action was filed.20 Attorneys who filed in state court had a higher average of state

facts (73%) than attorneys who filed in federal court (57%).

Perception of judicial predispositions, source of law, and state facts. We found that

the probability of filing in state court is at its highest level when attorneys perceive a

state judicial predisposition toward their clients’ interests, there was a majority of state

claims, and there was a high average21 of class members residing in, and claims-related

events originated in, the state where the class action was filed. Likewise, the

probability of filing in state court was at its lowest level when the opposite was true.

The multivariate model predicts that very few cases would be filed in state courts if

attorneys perceive a federal judicial predisposition toward their clients’ interests, there

is a majority of federal claims, and there is a low average22 of claimants residing in, and

claims-related events occurring in, the state where plaintiffs filed the class action.

Secondary factors reportedly influencing attorneys’ choice of forum

Reasons for choosing to file in state or federal court. We found other factors were

associated with attorneys’ choice of forum. In the questionnaire (Questionnaire

Appendix, question 21), attorneys reviewed a list of statements about factors that

might have influenced their decisions about where to file the case. These statements

 

occurred in the state where the class action was filed.” That question depends on the ability of a

responding attorney to distinguish between events (such as the purchase or use of a product allegedly

causing injury) that may have occurred both within the state of filing and in a number of other states.

20. We examined the influence of the number of states represented by the class, the percentage of

class members residing in the state, and the number of claims-related events that occurred in the state but

found that these factors individually were not associated with attorneys’ choice of forum.

21. We examined the distribution for this variable and found that 25% of the respondents reported

that all of the class members resided in, and all of the claims-related events occurred in, the state in which

the plaintiff filed the class action (which we call “high state facts”).

22. We examined the distribution for this variable and found that 25% of respondents reported 20%

or less state facts (which we call “low state facts”).
Attorney Reports on the Impact of Amchem and Ortiz on Choice of Forum in Class Action Litigation

FJC Report to the Advisory Committee on Civil Rules, April 2004

15

compared differences in state and federal practices, including applicable law,

convenience, rules, judicial receptiveness, costs and fees, and strategy. Attorneys

indicated which reason(s) influenced their decisions on where to file their case.

Attorneys who filed in state court were more likely than attorneys who filed in

federal court to choose the following reasons for their decision: favorableness of

substantive law and discovery rules; general judicial receptiveness to such claims on

the merits; lower costs of litigation; higher jury awards; and convenience of the court

location.23 We found that the above factors were associated with where the named case

was filed. The probability of filing in state court increased if an attorney chose any of

those factors as a reason for selecting a particular court.

Table 2 shows the percentage of attorneys who chose any of these factors.

Table 2: Factors selected by plaintiff attorneys as reasons for choice of forum

Reason Filed in State Court Filed in Federal Court

Source of claims (state or federal) 78% 28%

Favorableness of substantive law 33% 4%

Favorableness of discovery rules 28% 16%

Judicial receptiveness to claims on merits 38% 19%

Lower costs of litigation 31% 12%

Higher jury awards 18% 4%

Location of court 32% 18%

Note: Differences in this table are statistically significant at the .05 level.

Competing or overlapping cases. Attorneys were asked whether other lawsuits were

filed in state or federal courts dealing with the same subject matter around the same

time as the named case.24 Attorneys filing in state court reported that, of the similar

cases filed at the time of the named case, 61% were filed in a state court, 26% were

filed in both state and federal court, and 13% were filed in federal court. Attorneys

filing in federal court reported that 40% of similar cases were filed in state court, 12%

were filed in both state and federal court, and 48% were filed in a federal court.

We found that the locations of the other cases are associated with the location

where the named case was filed. The probability of filing in state court increases when

a similar case has been filed in a state court and decreases when a similar case has

 

23. These factors were found to be independently predictive of attorneys’ choice of forum. We

controlled for the three factors in the basic model. There may be other factors (not included in the

questionnaire) that we could not control that may have influenced the relationship.

24. Note that we created the database for this study in a way that was designed to eliminate duplicate

cases consolidated in the same federal court or in the same MDL proceeding. See Methods Appendix at A2 (“Population of Class Action Terminations”). Attorneys in the survey may, of course, have referred to

cases that we treated as a single consolidated case.
Attorney Reports on the Impact of Amchem and Ortiz on Choice of Forum in Class Action Litigation

FJC Report to the Advisory Committee on Civil Rules, April 2004

16

been filed in a federal court. For further discussion of competing and overlapping

cases, including discussion of settlements and other outcomes, see Part 2.

Attorney experience. Attorneys were asked about the percentage of their civil cases

that they filed in federal court in the past five years. Responses indicated that the

probability of filing in state court increases when the percentage of civil litigation filed

in federal court in the past five years is low and decreases when the percentage of civil

litigation filed in federal court is high. Attorneys filing in state court reported filing

30% of civil litigation in federal court in the past five years. Attorneys filing in federal

court reported filing 46% of civil litigation in federal court.

 Attorneys also were asked about the number of class actions they filed over the

past three years and the percentage filed in state court. Of all of the factors discussed

in this section, attorney reports indicated that prior class action filings had the least

amount of influence on attorneys’ choice of forum. The probability of filing in state

court increases when the number of class actions filed in state court is high and

decreases when the number of class actions filed in state court is low. Attorneys filing

in state court reported filing 77% of all of their class actions in the past three years in

state court. Attorneys filing in federal court reported filing 36% of all of their class

actions in the past three years in state court.

Factors not associated with filing choices

We also examined other factors that could bear on the impact of the Amchem and

Ortiz decisions on plaintiffs’ choice of a federal or state forum. Table 3 describes these

factors, none of which seemed to have played a role in attorneys’ decisions.
Attorney Reports on the Impact of Amchem and Ortiz on Choice of Forum in Class Action Litigation

FJC Report to the Advisory Committee on Civil Rules, April 2004

17

Table 3: Factors not associated with plaintiff attorneys’ choice of forum

Factor Description of Factor in Questionnaire

Stringency of class

certification rules

[Federal/State] class action rules in general imposed [more/less] stringent

requirements for certifying a class action.

Availability of

interlocutory appeal

Interlocutory appeal was [more/less] likely to be available in

[federal/state] court.

Stringency of class

notification rules

[Federal/State] class action rules in general imposed [more/less] stringent

requirements for class notification.

Judicial receptiveness to

approve settlement

[Federal/State] court was generally more receptive to motions to approve

a class settlement.

Judicial receptiveness to

certification

[Federal/State] court was generally [less/more] receptive to motions to

certify a class.

Appoint firm as class

counsel

[Federal/State] court would be more likely to appoint my client and our

law firm to represent the class.

Amchem main reason

Amchem/Ortiz: One or both cases provided the main reason we

[filed/removed] the named case [in/to] [state/federal] court.

Amchem one reason

Amchem/Ortiz: One or both cases were among a number of factors that

led us to [file/remove] the named case [in/to] [state/federal] court.

Amchem specific case

impact

What effect, if any, do you think the Amchem and Ortiz cases had on the

management of the named case?

Amchem general impact

How do you think the Amchem and Ortiz cases have affected class action

litigation generally in federal and state courts?

Summary

Linking these findings with the Advisory Committee’s interest in information to assist

its decision on whether to revisit the settlement class area, we found no support in the

multivariate analysis for the proposition that the Amchem and Ortiz opinions had any

impact on plaintiff attorney decisions about choice of forum. As we discuss in Part

1(c), attorney responses to direct and open-ended questions suggest a perceived

impact from the two cases and perhaps some impact on defendant attorneys’ decisions

to remove cases to federal court. The multivariate analysis discussed above, however,

indicates that plaintiff attorneys did not consider those two cases as influencing their

selection of a federal or state forum in the named cases. The only rule-related factor

that was associated with attorneys’ choice of forum related to discovery rules. None of

the Amchem-related rules and propositions were associated with plaintiff attorneys’

choice of forum.
Attorney Reports on the Impact of Amchem and Ortiz on Choice of Forum in Class Action Litigation

FJC Report to the Advisory Committee on Civil Rules, April 2004

18

(b) Comparison of plaintiff and defendant attorney reports of reasons for

choosing to file the named case in, or remove it to, federal court

We could not conduct a multivariate analysis of factors affecting defendant attorneys’

removal of cases to federal court because we could not readily obtain a sample of

defendant attorneys who chose to remain in state courts. We did examine defendant

attorneys’ responses, however, and in this section compare responses of plaintiff25 and

defendant attorneys who chose federal court.

The types of cases that were removed to federal court seemed to differ from those

filed originally in federal court in regard to the proportion of claims based on state or

federal law. Defendant attorneys who removed named cases to federal court (58%)

were more likely than plaintiff attorneys who filed named cases originally in federal

court (39%) to report that all claims in their case were based on state law. Eighty-eight

percent (88%) of defendant attorneys, as opposed to 66% of plaintiff attorneys,

reported that at least half of their claims were based on state law. On the other hand,

24% of plaintiff attorneys who filed cases originally in federal court reported that all

claims were based on federal law; only 3% of defendant attorneys who removed cases

reported this. About one-third of plaintiff attorneys who filed cases in federal court

and 12% of defendant attorneys who removed cases to federal court reported that their

case involved a majority of federal claims.

Cases that defendant attorneys removed to federal court included more state facts

(71%) than cases plaintiff attorneys filed in federal court (55%). Defendant attorneys

reported that, on average, 73% of class members resided in, and 73% of claims-related

events occurred in, the state where the class action was filed. Plaintiff attorneys who

filed in federal court reported that on average 47% of class members resided in, and

62% of claims-related events occurred in, the state of filing. Over 60% of attorneys

removing to federal court reported that members of the proposed class resided in two

or fewer states; 16% reported class members from all 50 states. Twenty-nine percent

(29%) of plaintiff attorneys who filed in federal court reported that the class members

resided in two or fewer states and 34% reported class members from all 50 states.

Attorneys appear to have considered any overlapping or competing cases before

choosing federal court. Earlier we reported that plaintiff attorneys were more likely to

file in state court if a similar case had been filed in state court. Plaintiff attorneys who

filed in federal court reported that 50% of similar cases were filed in federal court,

22% were filed in both state and federal court, and 28% were filed in state court. On

the other hand, defendant attorneys were likely to remove the named case to federal

court even if a similar case had been filed in state court: Defendant attorneys reported

11% of other similar cases had been filed in federal court, 29% were filed in both state

and federal court, and 60% were filed in state court.

 

25. The frequencies for plaintiff attorneys filing in federal court differ from the percentages

presented in Table 2 because we did not need to eliminate any responses based on a failure to respond to

other questions.
Attorney Reports on the Impact of Amchem and Ortiz on Choice of Forum in Class Action Litigation

FJC Report to the Advisory Committee on Civil Rules, April 2004

19

Table 4 shows the percentage of attorneys who reported relying on certain factors

as a reason for filing or removing a case to federal court.

Table 4: Factors cited by attorneys as reasons for choice of federal court*

Reason

Defendant Removed Case to

Federal Court

Plaintiff Filed Case in

Federal Court

Client prefers federal court 65% Not available**

Attorney prefers federal court† 57% 26%

Class certification more/less stringent† 47% more stringent 8% less stringent

Class notification more/less stringent† 9% more stringent 1% less stringent

Court more receptive to motions to

approve class settlement†

2% 6%

Court likely to appoint firm as class

counsel†

Not available** 3%

Discovery rules favorable† 26% 10%

Expert evidence rules favorable† 22% 2%

Substantive law favorable† 18% 3%

Costs of litigation lower†† 14% 9%

Jury awards favorable† 21% lower awards 3% higher jury awards

Court has more resources† 30% 14%

Court is more expeditious† 27% 17%

Court location favorable†† 9% 17%

*Table 4 differs from previous tables in that it includes responses from defendant attorneys who

removed cases from state to federal courts.

**These respondents were not presented with this factor as a potential reason for choosing a federal

forum.

†

Differences are statistically significant at the .05 level.

††Differences are statistically significant at the .10 level.

The reason most often cited by defendant attorneys for removing cases to federal

court was the general preference of both the client and the attorney to litigate in

federal court. Defendant attorneys were more than twice as likely as plaintiff attorneys

to cite their preference to litigate in federal court as a reason for filing in that court.

Amchem and Ortiz factors reportedly did not play much of a role in either plaintiff

or defendant attorneys’ choice of a federal forum. Almost half of defendant attorneys

cited the general stringency of class certification as a reason for removing a case to

federal court. Many plaintiff attorneys choosing federal court agreed; few indicated a

belief that they would have an easier time with class certification. A small minority of

plaintiff attorneys chose to file in federal court because the attorneys expected the

court to appoint their firm as class counsel.
Attorney Reports on the Impact of Amchem and Ortiz on Choice of Forum in Class Action Litigation

FJC Report to the Advisory Committee on Civil Rules, April 2004

20

Expected effects of Amchem and Ortiz would more likely appear when a defendant

attorney decides to remain in state court, but we did not have the opportunity to study

cases that were filed in state court and not removed to federal court. To the extent that

attorneys viewed certification of a settlement class as an integral part of the settlement

approval process,26 most attorneys did not report judicial receptiveness to motions to

approve class settlement as an important factor in their decisions on choice of forum.

In choosing a forum, attorneys reported considering the perceived favorableness

of substantive law and court rules, and the judicial receptiveness to their claims or

defenses. Defendant attorneys were more likely than plaintiff attorneys to report

choosing federal court because they expected the substantive law, and class

certification, discovery, and expert evidence rules to be more favorable.

A number of respondents reported that they chose to file in federal court after

considering the court resources and how fast their case would move through the

court. Defendant attorneys were more likely than plaintiff attorneys to report choosing

federal court because they believed that federal court had more resources available to

handle the class action, that the court would be able to resolve the class action more

expeditiously, and that litigation costs would be lower. Plaintiff attorneys were more

likely than defendant attorneys to report choosing federal court because the location

of the court was convenient to them, their clients, and witnesses. A few plaintiff

attorneys reported that they chose federal court because they believed they would

receive a higher jury award, but defendant attorneys were seven times more likely to

report choosing federal court because they envisioned a lower jury award.

Summary

Defendant attorneys’ reported reasons for choosing a federal forum differed somewhat

from plaintiff attorneys’ reported reasons. Defendant attorneys were far more likely to

view federal courts as preferable because of restrictive application of class certification

rules. Amchem and Ortiz considerations may have played a role in defendant attorneys’

perceptions of restrictive application of class certification rules in federal courts, but

this study does not provide evidence that Amchem and Ortiz led plaintiff attorneys to

file class actions in state court or led defendant attorneys to refrain from removing

state class actions to federal court.

(c) Attorney reports of the effects of Amchem and Ortiz on the named case

and in general

We also analyzed a set of direct questions concerning the impact of the Amchem and

Ortiz cases on filing and removal decisions. A closed-ended question asked about “any

effect one or both of those cases may have had on your decisions” about where to file

or whether to remove. A large majority (85%) of plaintiff and defendant attorneys

 

26. A common scenario in which class certification becomes an integral part of settlement approval

occurs when both sides negotiate a class settlement and then seek certification of a settlement class as a

part of seeking court approval of the settlement.
Attorney Reports on the Impact of Amchem and Ortiz on Choice of Forum in Class Action Litigation

FJC Report to the Advisory Committee on Civil Rules, April 2004

21

indicated that neither the Amchem nor the Ortiz decision was among a number of

factors that influenced their decisions about where to file or whether to remove the

named case. Defendant attorneys (11%) were more likely than plaintiff attorneys (7%)

to indicate that Amchem and Ortiz were among a number of factors that led to their

choice of a federal forum (by removal or original filing). A larger percentage (15%) of

attorneys involved in personal injury cases than in all other types of cases (9%)

reported some effect of the cases on the choice of forum, but that difference is not

statistically significant.

Four attorneys indicated that either or both the Amchem and Ortiz decisions were

the main reason for their forum selection. These responses came from both plaintiff

and defendant attorneys in four different types of cases from four different districts.

They appear to have no common threads.

We also asked an open-ended question about “the effect, if any . . . the Amchem

and Ortiz cases had on the management of the named case.”27 Attorney responses were

similar to those reported above for the closed-ended question dealing with filing and

removal decisions. First, those factors proved not to be important in plaintiff

attorneys’ choice of forum (see Part 1(a), above). Second, 88% of the attorneys

reported Amchem and Ortiz had little or no effect on the management of the named

case. About 7% of plaintiff and 5% of defendant attorneys said the two decisions made

it more difficult to certify, settle, or maintain the named cases as a class action, with

2% of plaintiff attorneys and 3% of defendant attorneys pointing solely to an increased

difficulty in settling the case as a class action.28 Note that the above data represent ex

post facto assessments of the effects of Amchem and Ortiz in general, not just on the

choice of forum. As such, these data represent the main opportunity attorneys had to

report the effects of Amchem and Ortiz on certification of a class for settlement.

In responding to an open-ended question about the general effects of the two

cases, a contrast between the general perceptions and opinions of attorneys and their

reported experiences in the named case emerged. We asked “How do you think the

Amchem and Ortiz cases have affected class action litigation generally in federal and

state courts?” Attorneys perceived the two Supreme Court cases to have had far more

impact than attorneys’ collective responses to specific questions about the named case

revealed: 43% expressed their opinion that the two cases have generally made it more

difficult to certify, settle, or maintain class actions in federal and state courts. Another

5% expressed their opinion that the impact of the two cases was limited to making it

more difficult to certify, settle, or maintain mass tort class actions in federal or state

court. About 27% indicated that the effect had been “none” or “little.”

In our estimation, attorney reports about the named cases deserve far greater

weight because those reports amount to a representative national sample of attorneys’

experiences in recent cases. In contrast, responses to the general question amount to a

representative national sample of attorneys’ opinions—perhaps based on their own

 

27. Both authors coded the open-ended responses. The percent of agreement was 96% for this

question and the question discussed in the next paragraph of the report.

28. Differences between plaintiff and defendant responses were not statistically significant.
Attorney Reports on the Impact of Amchem and Ortiz on Choice of Forum in Class Action Litigation

FJC Report to the Advisory Committee on Civil Rules, April 2004

22

experiences, perhaps not—untethered to a specific identified case. Data from our

sample are anchored to identified cases and our design allows us to draw inferences

about the representativeness of those cases. Data based on the attorneys’ opinions are

not anchored to known cases and cannot be said to reflect actual circumstances. One

can speculate, of course, that attorneys’ opinions might influence future cases.

Summary

The data derived from the named cases suggest that, at most, the two Supreme Court

decisions affected attorneys’ choice of forum and class certification or settlement in a

modest percentage of the named cases. As discussed in Part 1(a), plaintiff attorneys’

reports of why they filed cases in state or federal courts—when examined in the

aggregate and in the context of the multiple factors that might be expected to affect

their choice of forum—did not reveal any impact based on the Amchem and Ortiz

decisions.

Nonetheless, attorney responses to the direct Amchem and Ortiz questions provide

some support for the conclusion that the cases may have had some relationship with

class action certification and settlement apart from the attorneys’ choice of forum.

About 5% to 8% of the attorneys reported an effect from Amchem and Ortiz on

certification, maintenance, or settlement of the named case as a class action. Those

data both confirm the existence of Amchem and Ortiz relationships asserted by

Professor McGovern and suggest their relative infrequency.29

(d) Plaintiff and defendant attorney reports about any relationship between

client characteristics and filing and removing decisions

Attorneys might believe they would have an advantage, or a disadvantage, in state or

federal court based on particular characteristics of the parties they represent. The

questionnaire called for attorneys to review a list of party characteristics and report if

they had, at the time of filing, expected any of those characteristics to yield an

advantage or disadvantage. The party characteristics included residence, gender, race,

ethnicity, religion, socioeconomic status, foreign national status, corporate status, and

type of business, and reputation of the class representatives and defendants.

Most respondents reported expecting no advantage or disadvantage arising from

most of these party characteristics. When a majority of attorneys perceived effects,

they tended to be modest—but all were statistically significant. None of the

characteristics elicited responses indicating attorneys’ widespread perceptions of a

strong advantage or disadvantage.

Using multivariate analyses we found that party characteristics were not associated

with plaintiff attorneys’ choice of forum. We included those characteristics in the

analysis (see Part 1(a)) of the many factors that might have affected attorney decisions

about where to file a class action. Here we discuss the differences regarding the

 

29. See supra note 6 and accompanying text.
Attorney Reports on the Impact of Amchem and Ortiz on Choice of Forum in Class Action Litigation

FJC Report to the Advisory Committee on Civil Rules, April 2004

23

importance of these party characteristics among plaintiff attorneys who filed in state

or federal court as well as between plaintiff and defendant attorneys.

Differences between plaintiff attorneys who filed in state and federal court

We examined whether there were differences between ratings of party characteristics

for plaintiff attorneys who filed proposed class actions in state court and plaintiff

attorneys who filed such suits in federal court. Attorneys who filed in state and federal

court differed in their reports of any perceived advantage or disadvantage of

defendant’s type of business and class representative’s local residence and reputation.

In these analyses, what we did not find may be as important as what we found. No

significant differences emerged from ratings of the perceived advantage or

disadvantage of class representative’s type of business; defendant’s out-of-state

residence; defendant’s reputation; or either party’s gender, race, ethnicity, religion,

socioeconomic status, corporate status, and foreign national status.

Table 5 shows the percentage of plaintiff attorneys who filed in state and federal

court who rated the party characteristic as an advantage, a disadvantage, or neither.

Table 5: Plaintiff attorney ratings of party characteristics by choice of forum

Variable Court of Filing Advantage

No Advantage/

No Disadvantage Disadvantage

Defendant’s type of State 52% 45% 3%

business (N=147) Federal 29% 65% 6%

Class representative’s State 71% 28% 1%

local residence (N=163) Federal 1% 52% 47%

Class representative’s State 28% 70% 2%

reputation (N=131) Federal 0% 87% 13%

Note: Differences in this table are statistically significant at the .05 level.

The majority of plaintiff attorneys who filed in state court reported expecting the

type of business conducted by the defendant to be an advantage to the plaintiff’s case,

but nonetheless multivariate analyses did not show that defendant’s type of business

influenced plaintiffs’ filing decisions. To a lesser degree, some plaintiff attorneys

reported expecting the defendant’s type of business to make filing in federal court

more advantageous. A limited number of attorneys identified the type of business.30

They mentioned insurance or financial services (e.g., banking, mortgages, and

accounting) most frequently as presenting an advantage to the plaintiff side. Attorneys

who filed in state court most often reported viewing a manufacturing business as an

 

30. Because the number of attorneys who provided this information was small, we were unable to

conduct any sophisticated statistical analysis.
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24

advantage, whereas attorneys who filed in federal court reported seeing this type of

business as neither an advantage nor a disadvantage.

A majority of attorneys filing in state court reported that the local residence31 of

the class representative made state filing more advantageous to their side. Of the party

characteristics, this one had the strongest association with a plaintiff’s decision about

where to file a class action; nonetheless, it did not surface in the multivariate analysis

as a factor in the model predicting choice of forum (see Part 1(a)). Almost one-half of

attorneys filing in federal court reported the class representative’s local residence to be

disadvantageous to their side.

Likewise, more than a quarter of attorneys filing in state court reported that the

reputation of the class representative was an advantage to their side. No attorneys who

filed in federal court reported the class representative’s reputation to be an advantage,

but a number did report this party characteristic put their case at a disadvantage in

federal court.

Differences between plaintiff and defendant attorneys

We also examined whether there were differences in ratings of the above party

characteristics between plaintiff attorneys who filed proposed class actions in state or

federal court and defendant attorneys who removed proposed class actions to state

court. We found that there were statistically significant differences between plaintiff

and defendant attorneys on the perceived advantage of the defendant’s and the class

representative’s residence and type of business, the defendant’s corporate status, and

the class representative’s gender, race, ethnicity, religion or socioeconomic status.

No statistically significant differences were found in ratings of the perceived

advantage or disadvantage of the defendant’s gender, race, ethnicity, religion, or

socioeconomic status; the defendant’s out-of-state residence; the class representative’s

corporate status; or the reputation or foreign national status of both the class

representative and the defendant.

Table 6 shows the percentage of plaintiff and defendant attorneys who rated the

party characteristic as an advantage, a disadvantage, or neither.

 

31. Note that the term “local residence” may take on different meaning in the state and federal

courts. A local resident, in reference to a state court, probably resided in the same city in which the court

was located. A local resident, in reference to a federal court, may well have resided in a different city but

in the same state as the court.
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Table 6: Ratings of party characteristics by plaintiff and defendant attorneys

Variable Attorney Advantage No Advantage/

No Disadvantage Disadvantage

Class representative’s local Plaintiff 63% 36% 1%

residence (N=395) Defendant 24% 52% 23%

Defendant’s type of business Plaintiff 22% 77% 1%

(N=360) Defendant 12% 78% 10%

Class representative’s type of Plaintiff 43% 52% 4%

business (N=223) Defendant 39% 40% 22%

Defendant’s corporate status Plaintiff 24% 72% 4%

(N=319) Defendant 25% 59% 15%

Class representative’s gender, Plaintiff 17% 82% 1%

race, ethnicity, religion, or

socioeconomic status (N=294) Defendant 9% 80% 11%

Note: Differences in this table are statistically significant at the .05 level.

The parties differed on the perceived advantage of the local residence of the class

representative. Plaintiff attorneys were more likely than defendant attorneys to report

the local residence of the class representative as an advantage to their side. About a

quarter of defendants reported expecting the local residence of the class representative

to be advantageous to their side, but an equal number expected it to be a

disadvantage.

Plaintiff and defendant attorneys’ opinions were mixed regarding any advantage

related to defendant’s type of business. For example, each set of attorneys reported

viewing a defendant’s financial services business as an advantage to their side.

Regarding an insurance business, however, both sides agreed in effect: Plaintiff

attorneys reported viewing an insurance business as an advantage to their side, while

defendant attorneys reported viewing an insurance business as a disadvantage to their

side.

Overall, the majority on both sides expected no advantage or disadvantage based

on the defendant’s type of business. Of those who saw advantages or disadvantages,

plaintiff attorneys believed the defendant’s type of business was more advantageous to

their cases than did defendant attorneys. A number of defendant attorneys expected

the type of business conducted by the defendant to be advantageous to their side, but

an equal number expected it to be a disadvantage.

Although plaintiff attorneys were more likely to report viewing the class

representative’s type of business as an advantage for the plaintiff, a number of

defendant attorneys also viewed this party characteristic as an advantage for their side.

However, defendant attorneys were more likely than plaintiff attorneys to view this
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26

party characteristic as a disadvantage. On the whole, both sets of attorneys saw a class

of consumer or insured claimants as an advantage to their side. Defendant attorneys

viewed a class involving brokers or sales representatives as an advantage to their side,

while plaintiff attorneys saw this type of class as a disadvantage to the plaintiffs’

success.

A clear majority on both sides reported no advantage or disadvantage associated

with a defendant’s corporate status. About a quarter of both plaintiff and defendant

attorneys expected the defendant’s corporate status to be an advantage to their side.

However, defendant attorneys were more likely than plaintiff attorneys to expect that

the defendant’s corporate status would be a disadvantage to their side.

Plaintiff attorneys reported that the gender, race, ethnicity, religion, or

socioeconomic status of the class representative was more of an advantage to their

case than did defendant attorneys. Again, the majority on each side thought these

characteristics were of no consequence.

Summary

In the debates about choice of forum in class action litigation, the legal interests of the

parties often become intertwined with party characteristics on both sides of the cases.

Defendants’ corporate status and type of business receive emphasis, as do plaintiffs’

local residence, reputation, gender, ethnicity, and so forth. The above analyses help to

separate out the relationship of these variables to the decisions about where to file

cases. We detected differences in reported expectations of advantages based on party

characteristics, but the absence of such characteristics in the predictor models

identified through the multivariate analysis indicates that these party characteristics

are not critical in the plaintiff’s choice of whether to file a class action in state or

federal court (see Part 1(a)).

2. Competing or overlapping class actions filed in other courts

The Advisory Committee has expressed concern about the use of competing or

overlapping class actions to create unfair advantages in class action litigation by

shopping proposed classes among various courts in search of a favorable outcome.

Pinning down the motivations for and effects of competing class actions was beyond

the reach of this study. We were able, however, to obtain information from attorneys

about the frequency with which other cases dealt with the same subject matter and

about the outcomes of those other cases in comparison to the named case.

A clear majority (64%) of the named cases were reported to be similar to one or

more other lawsuits dealing with the same subject matter and filed in state or federal

court within a year or so before or after the named case. Of those named cases, 48%

related to other cases filed only in state court; 25% to other cases filed only in federal

court; and 27% to other cases filed in both state and federal courts.32 Cases that had

 

32. In creating the database for the current study and the September 2002 study of class action filing

rates, we made efforts to avoid multiple counting of similar class action cases by identifying a single lead
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been removed from state to federal court were significantly more likely than cases filed

originally in federal court to be related to another case that had been filed in a state

court (61% v. 27%). Conversely, cases that were originally filed in federal court were

significantly more likely than cases removed to federal court to be related to another

case filed in federal court (46% v. 12%).

One indication of competition among the class actions is the extent to which

different settlements are proposed in different courts. Settlement of similar class

claims was proposed in another case 30% of the time. In about one third of the named

cases in which attorneys reported that a settlement had been proposed in another case,

the court had certified a class for trial and litigation or settlement—which suggests a

potential conflict between the cases. As discussed in Parts 4 and 5, almost all of the

certified named cases resulted in a class settlements approved by the court. In one case

that was not certified, an attorney reported that a settlement had been proposed in

another case and that the court rejected a proposed class settlement in the named

case.33

Overall, about two-thirds (68%) of the other cases either had the same outcome as

the named case or had been settled or dismissed as part of the named case; another 7%

were related to a national MDL settlement or judgment; and 4% had been removed to

federal court before being resolved. The cases removed to federal court may have been

resolved in accordance with the other federal action(s). Combining the above cases

leads to the likelihood that about three-quarters (75%–79%) of the other cases were

resolved in accordance with the outcome of the named case. Another 15% were settled

or dismissed on an individual or statewide basis, and 5% of the cases defied

categorization.34

When the named case had been dismissed on the merits, voluntarily dismissed, or

terminated by summary judgment, the other case was more likely to have had a

different outcome than when the named case had been terminated by a class

settlement. These data suggest that, in the minority of cases in which the outcomes

were not the same, a ruling on the merits in a class action filed in one court did not

prevent litigation of similar cases in other courts.

 

case for groups of cases that had been consolidated within a federal district or across districts by the

Judicial Panel on Multidistrict Litigation. See Bob Niemic & Tom Willging, Effects of Amchem/Ortiz on

the Filing of Federal Class Actions 29–32 (Sept. 2, 2002) (available at www.fjc.gov under “Publications”).

The final database included more than 15,000 class actions and excluded more than 12,000 related cases

that had been consolidated within the federal system. Id. at 32.

33. In that case, the district court refused to certify a statewide class or to grant preliminary approval

of a proposed settlement of an action that had been the subject of a nationwide class settlement (that

excluded residents of the state in which the district was located) in the courts of another state. Instead,

the court dismissed plaintiffs’ federal statutory claim for failure to state a claim upon which relief could

be granted.

34. There were no significant differences in outcomes based on whether the case had been removed

or remanded, or whether an attorney for the plaintiffs or for a defendant was responding to the survey.
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3. Plaintiff and defendant attorneys’ perceptions of state and federal

judges’ predispositions toward plaintiff and defendant interests

As shown in Part 1(a), a key question inquired into attorneys’ impressions of any

predispositions federal or state judges might have to rule in favor of interests like

those of the attorneys’ clients. Many attorneys perceived that federal and state judges

would rule differently on matters of interest, including rulings on class certification,

the merits of their cases, and jurisdictional issues. Our analyses showed that plaintiff

attorneys reported that their perceptions of such predispositions strongly influenced

their decisions about where to file class actions. We asked the same question of

defendant attorneys who had removed cases from state to federal court. We focus in

this section on both plaintiff and defendant attorneys’ reported perceptions of the

predispositions of judges in federal and state courts to rule on a particular class action

in favor of interests like those of the attorneys’ clients. In Part 3(a) we report attorney

perceptions of judicial predispositions, and in Part 3(b) we report the extent to which

such predispositions are related to differences in federal and state substantive law and

procedural and evidentiary rules. Parts 4 and 5 compare those perceptions with the

aggregated rulings and monetary recoveries and settlements or other outcomes in the

sampled cases. Part 4 does so for removed and remanded cases, and Part 5 does so for

all cases combined.

(a) Attorneys’ perception of judicial predispositions

In both the filing and removal settings, the survey question pointed to the time the

attorney decided where to file or whether to remove and asked the attorney to identify

“which of the following statements best describes your impression about any

predisposition of state or federal judges toward interests like your clients’?” (see

Questionnaire Appendix, Question 23).

Table 7 presents the exact language of the response categories as well as the

number and percentage of each response from plaintiff attorneys who filed class action

cases in state courts, plaintiff attorneys who filed class actions in federal courts, and

defendant attorneys who removed class actions from state to federal courts.
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Table 7: Attorney impressions of judicial predispositions to rule in favor of

client interests

Impressions About Judicial

Predispositions

Plaintiff

Attorneys –

State Filing

Plaintiff

Attorneys –

Federal Filing

Defendant Attorneys –

Removed to

Federal Court

Federal judges were more likely than

state judges to rule in favor of interests

like those of my clients

 9 (5%) 24 (23%) 182 (74%)

State judges were more likely than

federal judges to rule in favor of

interests like those of my clients

 95 (52%) 27 (26%) 1 (<1%)

We perceived no differences between

state and federal judges in this regard

 67 (37%) 44 (42%) 44 (18%)

I don’t know/Not applicable 12 (7%) 10 (10%) 19 (8%)

Total 183 105 246

Note the context and framework of the question. Each responding plaintiff

attorney had decided where to file the action and each defendant attorney had decided

to remove the case to federal court. The question calls for the attorney’s hindsight

judgment about one factor that might have influenced the attorney’s assessment of

whether there is a meaningful difference between state and federal courts in managing

and ruling on class action litigation. If an attorney believed that there was a difference

in regard to that single factor, the available options were to indicate a predisposition of

one court or the other. An attorney who did not see those response categories as

adequate to describe his or her view could, of course, opt for “I don’t know/Not

applicable.” Note also that this question followed lengthy questions about reasons for

filing in or removing cases to federal court and about party characteristics that might

have affected an attorney’s choice of forum.

Most of the attorneys reported that at the time they filed or removed the named

case, they had clear expectations that judges in state or federal courts were

predisposed to rule in favor of interests like those of their clients. About three out of

four defendant attorneys who removed cases perceived federal judges to be more

likely than state judges to rule in favor of interests like those of their clients. These

perceptions did not vary significantly based on the type of case.

A plurality of plaintiff attorneys who had filed in federal court reported perceiving

no material difference between federal and state judges. Fewer than one out of four

plaintiff attorneys who filed original actions in federal court perceived federal judges

to be likely to rule in favor of interests like those of their clients. An approximately

equal percentage of such plaintiff attorneys perceived state judges to be more receptive

to their clients’ interests, but nonetheless filed their cases in federal court. Perhaps the
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latter attorneys chose not to file in state court because they were pursuing federal

causes of action that would render the case removable to federal court.

When filing in state court, about half of the plaintiff attorneys perceived state

judges as more likely than federal judges to rule in favor of their clients’ interests.

Plaintiff attorneys who filed class actions in state court were twice as likely as plaintiff

attorneys who filed class actions in federal court to express the opinion that state

judges were more likely to rule in their clients’ interests. Conversely, attorneys who

filed actions in federal courts were almost five times more likely than attorneys who

filed originally in state court to report their impressions that federal judges were

predisposed to rule in favor of interests like those of their clients.

Overall, 29% of all attorneys responded that they perceived no difference between

state and federal judges regarding any predisposition toward interests like their clients’

interests. A majority (63%) of all attorneys perceived predispositions on the part of

judges in one set of courts or the other.

(b) Substantive law, procedural rules, and judicial receptivity as sources of

attorney impressions of perceived judicial predispositions

In this section we attempt to identify sources of the predispositions that attorneys

perceived. Are they a surrogate for differences between federal and state substantive

law? Procedural rules? Evidentiary rules? Or do they represent a perceived judicial

receptivity to claims like those of the attorneys’ clients? To a great extent, the answer

to all of those questions is “Yes.” Perceived judicial predispositions appear to

represent attorneys’ combined perceptions of substantive legal and procedural rules

favorable to their clients and of judicial receptivity to enforcing those rules.

Table 8 shows the relationships, in removed cases only, between defendant

attorneys’ perceived judicial predispositions and those attorneys’ assessments of the

favorability of law-related factors and of judicial receptivity toward their clients’

interests.
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Table 8: Defendant attorneys’ assessment of favorability of legal rules and of

judicial receptivity to such rules in relation to their impressions of judicial

predispositions toward their clients’ interests (removed cases only)

Attorneys’ Assessments of

Favorability or Receptivity

Attorneys Reporting Judicial

Predisposition Toward Their

Clients’ Interests

Attorneys Reporting No

Judicial Predisposition Toward

Clients’ Interests

Federal substantive law was more

favorable to our defense than state

substantive law.

71% 72%

Federal discovery rules were more

favorable to our case.*

84% 67%

Federal expert evidence rules

(Daubert/Frye) were more favorable

to our case.*

85% 67%

Federal evidentiary rules were more

favorable to our case.*

85% 69%

Federal class action rules in general

imposed more stringent

requirements for certifying a class

action.

77% 66%

The federal court was generally less

receptive to motions to certify a

class.*

84% 64%

The federal court was generally more

receptive to the claims on the

merits.*

83% 70%

*These differences are statistically significant at the .05 level.

As we saw in Part 3(a), about three out of four attorneys who removed proposed class

actions to federal court reported their impression that federal judges were predisposed

to rule in favor of interests like those of their clients (Table 7). Table 8 shows that

several bases for the attorneys’ expectations of favorable rulings lie in the substantive

law and procedural rules underlying such rulings. Defendant attorneys who removed

cases perceived that federal discovery, expert evidence, and general evidentiary rules

favored their clients’ interests. They also reported their impressions that federal judges

were less receptive than state judges to motions to certify a class and more receptive to

defendants’ positions on the merits. We did not find statistically significant differences

in attorney perceptions of the stringency of the class action rules in federal and state

courts.

Table 9 examines similar phenomena from the perspective of plaintiff attorneys

who filed actions in state court.
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Table 9: Plaintiff attorneys’ assessment of favorability of legal rules and of

judicial receptivity to such rules in relation to their impressions of judicial

predispositions toward their clients’ interests (removed cases only)

Attorneys’ Assessments of

Favorability or Receptivity

Attorneys Reporting Judicial

Predisposition Toward Interests

Like Those of Their Clients

Attorneys Reporting No Judicial

Predisposition Toward Interests

Like Those of Their Clients

State substantive law was more

favorable to our claims than

federal substantive law.*

61% 43%

State discovery rules were more

favorable to our case.*

66% 43%

State expert evidence rules

(Daubert/Frye) were more

favorable to our case.

55% 48%

State evidentiary rules were more

favorable to our case.*

80% 44%

State class action rules in general

imposed less stringent

requirements for certifying a

class action.*

77% 40%

The state court was generally

more receptive to motions to

certify a class.*

76% 36%

The state court was generally

more receptive to the claims on

the merits.*

78% 32%

*These differences are statistically significant at least at the .05 level.

About half of plaintiff attorneys who filed cases in state courts reported their

impression that state judges were predisposed to rule in favor of interests like their

clients’ interests (Table 7). Table 9 reveals some of the apparent bases for those

impressions. Those plaintiff attorneys who perceived a judicial predisposition toward

their clients’ interests were more likely to perceive that state law as well as state

discovery, evidentiary, and class action rules favored their clients’ interests. They were

also more likely (than plaintiffs attorneys who reported no judicial predisposition) to

report that state court judges were more receptive than federal judges to motions to

certify a class and to their clients’ claims on the merits.

In analyzing other aspects of the survey, we found evidence that attorneys’

perceptions of judicial predispositions were not accurate in relation to judicial rulings

on class certification and other procedural motions. Attorney perceptions, however,

showed some consistency with regard to the size of monetary recoveries and

settlements and attorney fee awards—matters that largely arose out of party

settlements. In Part 4 we present data based on attorney reports about removed cases
Attorney Reports on the Impact of Amchem and Ortiz on Choice of Forum in Class Action Litigation

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33

indicating that attorneys’ perceptions regarding rulings in the named case turned out

for the most part to differ from our analysis of those rulings.

Attorney perceptions of judicial predispositions, however, showed an association

(but not necessarily a causal relationship) with the amount of class monetary

recoveries and settlements in state and federal courts—in all but one instance in the

form of settlements negotiated by the parties. These results, however, do not appear to

be the direct results of federal or state judicial predispositions because the only

judicial rulings in such cases would have been to certify a class—as likely as not an

unopposed settlement class—and to approve the proposed settlement—which was

always the result in either court system.

4. Comparison of rulings by state and federal courts in removed

cases

Overall, 221 of 438 cases (50%) that had been removed from state to federal court

were remanded to the state court in which they were originally filed. Of the closed

cases in the subset of removed cases,35 123 of 292 (42%) had been remanded to state

court. In this part, all analyses that discuss the outcomes of removed cases use the

subset of closed cases.

Having information about a group of closed remanded cases creates an

opportunity to compare state courts’ and federal courts’ rulings, procedural outcomes,

and monetary recoveries and settlements. The only apparent systematic difference

among the two sets of cases was that a federal district judge had ruled that there was

no federal jurisdiction to hear the remanded cases. We proceed on the assumption

that such jurisdictional rulings do not ordinarily turn on the merits of the claims

presented or on the certifiability of the case as a class action. We will examine whether

federal and state court rulings on class certification (see Table 10), motions to dismiss

or for summary judgment (see Table 12), or reviews of class settlements (see Table

13) reveal any systematic differences in the ways federal and state courts resolved the

two sets of proposed class actions. We will also examine the class recoveries (see

Table 14), generally settlements, in cases that produced any type of recovery for the

class.

Assuming that there are no inherent or likely differences in the merits of the two

sets of cases, one would expect the outcomes either to be similar or to reflect

differences in state and federal rules or in judicial approaches to the same types of

cases. Each set of cases was similar in that it was initially filed in state court and

removed to federal court. We found no statistically significant differences in the

likelihood of a court remanding various types of cases, such as contract, personal

injury, property damage, or other types of cases. The following discussion does not

and cannot address similarities and differences between removed cases and cases filed

in state court and not removed.

 

35. A substantial number of the remanded cases had been closed in federal court because of the

remand, but were still pending in state courts at the time of the survey.
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As we saw in Parts 1 and 3, attorneys for class action litigants generally anticipate

that federal and state judges will rule differently on matters of interest to the attorneys’

clients. A large majority (74%) of defendant attorneys who removed cases to federal

court indicated they had an impression that “federal judges were more likely than

state judges to rule in favor of interests like those of my clients” (Table 7). A smaller

but substantial percentage (52%) of plaintiff attorneys who filed a case originally in

state court perceived state judges to be “more likely than federal judges to rule in

favor of interests like those of my clients” (Table 7). Taking such statements as

hindsight-based observations—or, perhaps more realistically, as general expectations

about federal and state judicial rulings on class certification and on the merits—how

well do those statements stand up when we compare them to the aggregate outcomes

of a sample of cases in federal and state courts?

(a) Rulings on class certification

Table 10 compares federal and state judicial rulings on class certification.

Table 10: Comparison of outcomes regarding class certification for closed cases

removed to federal court, by remand

Outcome Regarding Class Certification

Remanded to State Court

(N=118)

Removed to Federal Court and

Not Remanded (N=165)

Class certified for trial and litigation or

settlement

24 (20%) 37 (22%)

– Certified for trial and litigation 12 (50%) 18 (51%)

– Certified for settlement 12 (50%) 18 (49%)

Certification denied* 15 (12%) 44 (27%)

No action taken on certification (before

case resolved)*

79 (67%) 84 (51%)

*Differences are statistically significant at the .05 level.

In both federal and state courts, cases were almost equally likely to be certified as class

actions. The slightly lower certification rate in state courts is not statistically

significant. The likelihood of certification for trial and litigation or for settlement is

also approximately the same in federal and state courts. These data indicate that in the

aggregate Amchem and Ortiz have not resulted in a likelihood that proposed class

actions would be more likely certified for settlement purposes in state courts than in

federal courts.36

 

36. Note however the limits of these data. All of the cases in this study were terminated within

approximately two to five years after the Supreme Court’s Amchem decision (three to six years after the
Attorney Reports on the Impact of Amchem and Ortiz on Choice of Forum in Class Action Litigation

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In both federal and state forums a majority of cases filed as class actions received

no ruling on class certification. In the named cases, federal judges were more likely

than state judges to rule on class certification and federal judges were more than twice

as likely to deny class certification.37 Federal judges’ higher rate of denying class

certification appears to be a counterpart of state judges’ higher rate of not ruling on

class certification.

Differences between a ruling denying class certification and the absence of such a ruling

Table 10 shows that cases removed to federal court were more likely than cases

remanded to state court to include a ruling on class certification. What, if any,

difference in case outcome did having a ruling denying class certification, compared

with no action, make?

Looking at all cases in the study we found no statistically significant difference in

the likelihood that the two types of uncertified cases would produce a monetary

recovery for the proposed class. Overall, neither type of case was very likely to lead to

a monetary recovery. Nor was there any statistically significant difference in the

likelihood either type of case would produce a nonmonetary recovery (such as a

coupon settlement or injunctive relief) or a recovery that included no nonmonetary

relief.

Table 11 presents data on the procedural outcomes of cases in which no class

action was certified, broken out by whether the trial court denied a motion to certify a

class or took no action on class certification.

 

Third Circuit’s decision rejecting certification of a settlement class). Within this database we have no

basis for comparing pre-Amchem and post-Amchem activity.

37. In an empirical study of class action cases terminated in four federal district courts during

1992–1994, Federal Judicial Center researchers reported that federal judges certified as class actions 152

(37%) of the 407 proposed class actions in the study; 59 (39%) of the 152 certified class actions were

settlement classes. Thomas E. Willging, Laural L. Hooper & Robert J. Niemic, Empirical Study of Class

Actions in Four Federal District Courts 9 (Federal Judicial Center 1996) (“FJC Empirical Study”). At that

time in those courts the certification rate for both litigation and settlement classes was notably higher

than the rate in either federal or state court in the current study.
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Table 11: Comparison of rulings and procedural outcomes for cases filed but

not certified as class actions (all cases)

Rulings and Procedural Outcomes

Court Denied Class

Certification (N=92)

Court Took No Action on

Class Certification (N=275)

Dismissed on merits 23 (24%) 67 (24%)

Dismissed for lack of jurisdiction 4 (4%) 22 (8%)

Summary judgment entered 12 (13%) 18 (6%)

Settled on individual basis* 38 (41%) 70 (25%)

Settled as part of another case 3 (3%) 13 (5%)

Voluntarily dismissed* 18 (19%) 85 (31%)

Tried on an individual basis 5 (5%) 3 (1%)

Note: The categories do not add up to 100% because respondents could select more than one

category and because “other” responses have been omitted.

*Differences are statistically significant at the .05 level.

Cases in which the court denied class certification were more likely than cases with no

action on class certification to end with individual settlements for named plaintiffs

and less likely to be voluntarily dismissed by the parties. None of the other differences

in outcomes proved to be statistically significant.

Support for defendants’ expectations that federal court rulings were more likely

than state court rulings (or the absence of rulings) to end up favoring their clients’

interests boils down to a greater likelihood that federal courts will expressly deny class

certification while state courts are more likely not to act on the matter. Overall, the

data suggest that there was little practical difference between federal court rulings

denying class certification and state court inaction regarding class certification.

(b) Rulings in cases not certified as class actions

Turning back to removed cases, Table 12 shows variations in rulings and procedural

outcomes for noncertified cases (including cases in which there was no ruling on class

certification), based on whether those cases were remanded to state court or resolved

in federal court.
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Table 12: Comparison of rulings and procedural outcomes for cases filed, but

not certified, as class actions and removed to federal court, by remand

Rulings and Procedural Outcomes

Remanded to State

Court (N=90)

Removed to Federal Court and

Not Remanded (N=126)

Dismissed on merits 20 (22%) 28 (22%)

Summary judgment entered 8 (8%) 11 (8%)

Settled on individual basis* 20 (22%) 48 (38%)

Settled as part of another case* 9 (9%) 4 (3%)

Voluntarily dismissed 22 (24%) 36 (29%)

Judgment after individual trial 2 (2%) 4 (3%)

Note: Total percentages may exceed 100% because respondents could select more than one category.

*Differences are statistically significant at the .05 level.

Table 12 shows, in cases filed as class actions but not certified, state and federal judges

were equally likely to dismiss individual claims on their merits or to enter summary

judgment on those claims. These data regarding rulings on the merits do not support

attorneys’ perceptions of the predispositions of state judges to rule in favor of

plaintiffs’ interests or of federal judges to rule in favor of defendants’ interests. The

only statistically significant differences we found in the outcomes of the two sets of

cases was that cases removed to federal court and not remanded to state court were

more likely to be settled on an individual basis and less likely to be settled as part of

another case. That tendency may in turn be linked with our earlier finding regarding

the denial or absence of class certification. Rulings that expressly denied certification

were correlated with individual settlements. The fact of a ruling, and not the absence

of class certification, seems to be the key factor.

(c) Procedural outcomes of certified class actions

We also looked for differences in procedural outcomes of certified class actions

according to whether they were remanded to state court or retained in federal court.

Table 13 shows little variation in results. Federal courts were somewhat more likely

than state courts to approve a proposed classwide settlement or to approve a revised

settlement, but, again, the differences were not statistically significant. These data do

not show any indication that Amchem and Ortiz have led to an increased reluctance on

the part of federal courts to approve class settlements or that there is any difference

between federal and state courts in that regard.
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FJC Report to the Advisory Committee on Civil Rules, April 2004

38

Table 13: Comparison of procedural outcomes for certified closed class actions

removed to federal court, by remand

Outcomes of Certified Cases*

Remanded to State

Court (N=28)

Removed to Federal Court

and Not Remanded (N=37)

Classwide settlement approved 23 (82%) 33 (88%)

Classwide settlement revised and approved 1 (4%) 2 (5%)

Class representatives settled on individual basis 0 1 (3%)

Classwide trial resulting in defendant judgment 0 1 (3%)

Case dismissed on merits 1 (4%) 1 (3%)

Case dismissed on grounds other than merits 1 (4%) 0

Case stayed after defendant filed bankruptcy 1 (4%) 1 (3%)

Note: The categories may not add up to 100% because respondents could select more than one

category and because “other” responses have been omitted.

*None of the differences in this table are statistically significant at the .05 level.

Table 14 presents data showing substantial differences in financial recoveries

when comparing certified class actions remanded to state courts and certified class

actions retained in federal courts. A monetary recovery or settlement was more likely

to occur when a federal court retained a case after removal (44%) than after a federal

court remanded a case to state court (33%).

Table 14: Comparison of monetary recoveries and settlements and class size in

certified closed class actions, by remand

Monetary Recovery/Class Size

Remanded to State

Court (N=74)

Removed to Federal

Court and Not

Remanded (N=118)

Cases with a monetary recovery or settlement* 25 (33%) 52 (44%)

Median amount of monetary recovery or

settlement**

$850,000 $300,000

Median size of class** 5,000 1,000

Median recovery per class member $350 $517

*Differences are statistically significant at the .05 level, based on a chi-square test.

**Differences in the medians are statistically significant at the .05 level, based on a Mann-Whitney

test of medians.
Attorney Reports on the Impact of Amchem and Ortiz on Choice of Forum in Class Action Litigation

FJC Report to the Advisory Committee on Civil Rules, April 2004

39

Both the size of the class and the amount of any monetary recovery or settlement were

substantially larger in cases remanded to state courts than in cases retained in federal

courts. Most of these recoveries were based on settlements approved by judges (see

Table 13). The total recovery for the class, of course, represents the benefit to the class

that typically serves as the primary basis for the court to calculate attorney fees for

class counsel.

In the remanded cases, the median class recovery was $850,000; in the removed

cases retained in federal courts, $300,000. From the individual class member’s

perspective, differences in the amount of recovery, however, were more than

compensated by differences in the sizes of the classes. By dividing the reported class

size in each case into the total monetary recovery we calculated the recovery per class

member. In the retained cases, the typical (i.e., median) recovery per class member

was $517, almost 50% higher than the $350 typical recovery in remanded cases. Thus,

smaller class recoveries in federal versus state court appear to be a product of the

smaller class sizes.

(d) Perceptions, class size, and monetary recoveries and settlements

Our data also show a relationship between the size of the class and attorney

perceptions of judicial predispositions. When the class contained fewer than 40,000

members, attorneys on the whole were somewhat more likely to report a perceived

predisposition on the part of federal courts than state courts (86% v. 76%) and, as we

have seen in Part 1, would have been somewhat more likely to file in federal court

because of that perceived predisposition. Conversely, for classes with more than

40,000 members, attorneys were more likely to report a state court predisposition

(24% vs. 14%). Although statistically significant, these differences are small and

cannot support a generalization that attorneys tended to look to state courts to handle

the larger cases.

Generally, plaintiff attorneys comprised the group that indicated a predisposition

on the part of state courts, but the single case in which a defendant attorney indicated

a state court predisposition involved a class of more than 40,000 members. Those data

suggest that cases involving larger proposed classes tend to be filed in or removed to

state courts and that the filing/removal pattern varies with the size of the class and

moves in the same direction as attorneys’ perceptions of judicial predispositions.

There is a possibility that attorneys, particularly plaintiff attorneys, perceive a judicial

predisposition in federal courts against large “sprawling” class actions, as in Amchem,38

and select state courts for such cases. Our data cannot directly confirm or reject that

possibility, but the small differences suggest that any effect would be limited to a small

number of cases.

We also analyzed the data on class recoveries from a different angle by looking for

case-specific relationships between an attorney’s impression of the predisposition of

 

38. Amchem, 521 U.S. 591, 624 (1997) (“No settlement class called to our attention is as sprawling

as this one.”).
Attorney Reports on the Impact of Amchem and Ortiz on Choice of Forum in Class Action Litigation

FJC Report to the Advisory Committee on Civil Rules, April 2004

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federal and state judges and the recovery or settlement in the named case in which the

attorney was counsel. One cannot overemphasize that attorneys reported both their

impressions about judicial predispositions and the data on the amount of monetary

recoveries and fees after the cases had been concluded. Accordingly, we cannot say

that the perceived predisposition led to higher settlements and fees or whether the

higher recoveries led to perceptions of judicial predispositions. Substantial differences

in the amount of monetary recoveries were related, in the direction of the attorneys’

perceptions.

When plaintiff attorneys indicated that state judges were more likely to favor

interests like those of their clients, the typical monetary recovery or settlement for the

class was $1,000,000. When defendant attorneys indicated that federal courts had a

predisposition to favor interests like their clients’ interests, the typical monetary

recovery or settlement for the class was $20,000.

We found similar results when we looked at the relationship between attorneys’

perceptions of predispositions and the amount of attorney fees and expenses awarded

in cases with a monetary recovery or settlement. When plaintiff attorneys indicated

that state judges were more likely to favor interests like those of their clients, the

typical award for attorney fees and expenses was $200,000 (in cases with a typical

monetary recovery or settlement of $1,000,000). When defendant attorneys indicated

that federal courts had a predisposition to favor interests like their clients’ interests,

the typical award for attorney fees and expenses was $7,000 (in cases with a typical

monetary recovery or settlement of $20,000).

(e) Summary

In Part 3, we reported relationships between attorneys’ perceptions of judicial

predispositions and their perceptions of the favorability of substantive, procedural,

and evidentiary law and rules, and of the perceived judicial receptivity to attorneys’

clients’ positions on class certification and on the merits. In this part, we extended our

inquiry into the relationships among attorney perceptions of judicial predispositions

and federal and state judicial rulings in removed cases on class certification and other

procedural matters, including approval of class settlements. We also examined

whether such attorney perceptions had any relationship with the monetary recoveries

and settlements in removed named cases.

We found few differences in legal rulings on procedural motions in state or federal

courts. Federal and state judges were about equally likely to certify a class, whether

for trial and litigation or settlement. One salient difference, however, was that federal

judges were more likely to deny a motion to certify a class while state judges were

more likely to take no action regarding such a motion. That difference, though, turns

out to have little practical significance for a proposed class; it appears primarily to be

related to the procedural outcome of individual claims, whether by voluntary

dismissal or adjudication.
Attorney Reports on the Impact of Amchem and Ortiz on Choice of Forum in Class Action Litigation

FJC Report to the Advisory Committee on Civil Rules, April 2004

41

5. Procedural outcomes and monetary recoveries and settlements in

named cases (removed and not removed)

(a) Certification for settlement or trial and litigation

Looking now at the total sample of all closed cases in the study (including the cases

filed as original actions in federal court, not just the removed cases discussed in Part

4), in the majority of cases (57%) the court took no action regarding class

certification. Judges certified 24% as class actions and denied certification to the other

19%. Considering only cases in which a court ruled on certification, 56% of those

rulings were to certify a class.

In a pre-Amchem study, Center researchers found that 152 of 407 proposed class

actions (37%) had been certified as class actions, either for settlement or for trial.39

That study was based on an examination of court files, not attorney recollections, and

was limited to proposed class actions that had been terminated between 1992 and

1994 in four federal districts. Despite these differences, it seems reasonable to infer

that the class certification rate has decreased after, but not necessarily because of,

Amchem.

Of the cases reported as certified, 42% were certified for trial and litigation and

58% were certified for settlement (see Table 15). Relatively few (10%) of the cases

certified for settlement were certified before the parties presented a settlement to the

trial court. In the FJC study of official court files and records for class actions

terminated in 1992–1994—before either Amchem or Ortiz was decided—59 of 152

(39%) certified class actions were certified for settlement purposes only.40 While the

methods of study and the populations of cases for the two studies were different,

together they suggest that the percentage of class actions certified for settlement has

increased and, correspondingly, the percentage certified for trial and litigation has

decreased. Given that the data fail to show any reduction in the percentage of classes

certified for settlement—and in fact show an increase in the proportion of classes

certified for settlement compared to those certified for trial and litigation—there is no

basis for concluding that Amchem and Ortiz reduced the frequency of class

certification for settlement purposes.

In the current study, all cases certified for settlement in fact settled. A small

percentage (5%) settled only after the parties revised a proposed settlement. Cases

certified for trial and litigation usually settled, but not always. Table 15 shows the

outcomes for class actions certified for trial and litigation compared with class actions

certified for settlement only.

 

39. FJC Empirical Study, supra note 37 at 9.

40. Id.
Attorney Reports on the Impact of Amchem and Ortiz on Choice of Forum in Class Action Litigation

FJC Report to the Advisory Committee on Civil Rules, April 2004

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Table 15: Comparison of case outcomes for class actions certified for trial and

litigation and class actions certified for settlement (N=125)

Outcomes of Certified Class Actions

Certified for Trial and

Litigation (N=52)

(42%)

Certified for

Settlement (N=73)

(58%)

Classwide settlement approved* 38 (72%) 69 (95%)

Classwide settlement revised and approved 2 (3%) 4 (5%)

Classwide settlement proposed and not approved by

court

1 (2%) 0

Class representative settled individually 1 (2%) 0

Classwide trial resulting in plaintiff judgment 3 (6%) 0

Classwide trial resulting in defendant judgment 3 (6%) 0

Case dismissed on merits 5 (10%) 0

Case dismissed on other grounds 2 (4%) 0

Note: Categories may exceed 100% because respondents could select more than one category.

*Differences are statistically significant at the .05 level.

It is often said that most or even all class actions settle. Data from the current

study as well as the FJC study of 1992–1994 class actions reveal an important

qualification for that statement: Almost all certified class actions settle. This is not to

say that certification causes settlement. In the earlier study, settlement often preceded

certification41 or followed certification by a considerable time.42 In the current study,

we asked how often certification for settlement purposes preceded settlement and

found that three cases (10%) were certified as settlement classes before certification.

Most cases (77%) certified for trial and litigation also ended up as settlements; in

one case a court rejected a settlement. Note, however, the claim that “all class actions

settle” does not even hold for certified class actions. Almost a quarter of cases certified

for trial and litigation did not result in an approved classwide settlement: 14% were

dismissed altogether, primarily on the merits, and certified class action lawsuits went

to trial at a rate (12%) that exceeds the overall rate (2–4%) for federal civil cases.43

 

41. Id. at 61–62 (reporting data indicating that class settlements in four federal district courts

preceded certification 15%, 23%, 37%, and 54% of the time).

42. Id.

43. Id. at 66 and Table 16 (showing trial rates “not notably different from the 3% to 6% trial rates for

nonprisoner nonclass civil actions” in the four districts studied). The trial rate has diminished in the last

decade from 4.3% in 1990 to 2.2% in 2000. Wayne D. Brazil, Court ADR 25 Years After Pound: Have We

Found A Better Way?, 18 Ohio St. J. on Disp. Resol. 93 (2002), citing Administrative Office of the United

States Courts, Annual Report of the Director of the Administrative Office of the United States Courts, 153

app. tbl. C-4 (1990); Administrative Office of the United States Courts, Judicial Business of the United

States Courts; 2000 Annual Report of the Director, 159 app. tbl. C-4 (2000).
Attorney Reports on the Impact of Amchem and Ortiz on Choice of Forum in Class Action Litigation

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One might expect, of course, that cases that have survived pretrial motions would

have a higher trial rate. When we include all closed cases, combining data from two

columns of Table 16, below, we find that 13 of 486 cases (3%) went to trial on an

individual (2%) or classwide (4%) basis.

Table 15 shows six cases being tried to verdicts, three for plaintiffs and three for

defendants. In the only case in which an attorney reported a monetary amount

recovered by a plaintiff class as a result of a jury trial, the amount was $1,600,000;

$400,000 of that amount was allocated for attorney fees.

(b) Outcomes of certified and noncertified cases compared

Courts and commentators often point to a certification decision as the key decision in

setting the course of class actions.44 Our data support the proposition that class

certification is at least one of the key decisions in class action litigation. One should

not assume, however, that certified cases had not earlier faced and survived motions

to dismiss and motions for summary judgment. The study of 1992-1994 class actions

reported that rulings on such motions often preceded any action on class

certification.45

Table 16 compares survey data for certified and noncertified cases filed as

proposed class actions. Cases certified for settlement are included in the certified

column.

 

44. For empirical data on this point, see Bryant G. Garth, Power and Legal Artifice: The Federal Class

Action, 26 Law & Soc’y Rev. 237 (1992) (finding “it is clear that certified class actions in general have

more settlement clout and a greater staying power”). See also In re Rhone-Poulenc Rorer, Inc., 51 F.3d

1293, 1295 (1995) (indicating that “orders certifying suits as class actions . . . often, perhaps typically,

inflict irreparable injury on the defendants (just as orders denying class certification often, perhaps

typically, inflict irreparable injury on the members of the class)”).

45. The Center’s 1996 study reported that rulings on motions to dismiss and motions for summary

judgment often preceded court action on class certification. In those instances, rulings on dispositive

motions would be the key determinants of whether the case would proceed to the class certification stage.

See FJC Empirical Study, supra note 37 at 29–35 (Federal Judicial Center 1996). A 2003 amendment to

Rule 23(c) was designed to ratify this practice by allowing sufficient time for the court to rule on

dispositive motions before ruling on class certification, permitting class certification decisions to be made

“at an early practicable time” rather than “as soon as practicable.” The committee note suggests that the

new rule “reflects prevailing practice” and “captures the many valid reasons that may justify deferring the

initial certification decision,” citing the FJC empirical study.
Attorney Reports on the Impact of Amchem and Ortiz on Choice of Forum in Class Action Litigation

FJC Report to the Advisory Committee on Civil Rules, April 2004

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Table 16: Comparison of case outcomes for closed cases filed as class actions

(certified vs. not certified)

Outcomes of Cases Certified (N=119) Not Certified (N=367)

Proposed class settlement approved 101 (85%) Not applicable

Revised class settlement approved 5 (4%) Not applicable

Class settlement proposed and rejected 1 (1%) 3 (1%)

Case dismissed for lack of jurisdiction Not applicable 26 (7%)

Case dismissed on merits 5 (4%) 90 (24%)

Case dismissed on other grounds 2 (2%) Not applicable

Summary judgment granted None 29 (8%)

Class representatives settle individually 1 (1%) 107 (29%)

Case dismissed voluntarily Not applicable 103 (28%)

Individual trials held Not applicable 8 (2%)

Class trial held 5 (4%) Not applicable

Note: The categories do not add up to 100% because respondents could select more than one

category and because “other” responses have been omitted.

In three-quarters of the not-certified cases that were dismissed on the merits, the

ruling on the merits preceded any court action on certification. This follows the

pattern observed in the earlier Center study.

The dichotomy between certified and non-certified cases could hardly be clearer.

A certification decision appears to mark a turning point, separating cases and pointing

them toward divergent outcomes. A profile of certified cases suggests that they have

shown classwide merit, at least in the sense of surviving or avoiding motions to

dismiss or motions for summary judgment. Certified cases concluded with a courtapproved classwide settlement 89% of the time; a few were tried and a few were

dismissed involuntarily. Non-certified cases did not show evidence of having

classwide merit; they were dismissed by a court, settled on an individual basis, or

voluntarily dismissed 97% of the time; a few had individual trials.

(c) Monetary and nonmonetary recoveries and settlements

Survey data suggest that attorney perceptions of favorable or unfavorable treatment in

federal courts may have a relationship with the total monetary amount of classwide

recoveries and settlements. Class recoveries were almost always the result of

negotiated class settlements, not directly the result of court judgments or jury

verdicts, but reported class settlements almost always occurred in cases that a court
Attorney Reports on the Impact of Amchem and Ortiz on Choice of Forum in Class Action Litigation

FJC Report to the Advisory Committee on Civil Rules, April 2004

45

certified as a class action for settlement or trial and litigation. In fact, Amchem and

Ortiz made it clear that a class settlement cannot be approved unless a class can be

certified under Rule 23 standards.

Monetary recovery or settlement. Overall, 142 (23%) of the named cases led to a

classwide monetary recovery or settlement; attorneys estimated the amount of

recovery in 120 of those cases. The typical recovery or settlement was $800,000; 25%

of the attorneys reported recoveries and settlements of $5.2 million or more; and 25%

reported $50,000 or less.

Nonmonetary recovery. Table 16 shows the frequency of providing four types of

nonmonetary relief in a class recovery: transferable and nontransferable coupons,

injunctive relief, and cy pres–public interest remedies. Altogether these nonmonetary

remedies were the sole remedies provided to the class in 15 cases. The total numbers

in Table 17 include cases in which there was no class recovery, monetary or

otherwise.

Table 17: Form of nonmonetary relief in closed class action cases

Form of Relief

Total of All Reports,

Including Monetary

Recovery (N=318)

No Monetary Recovery

(N=166)

No Monetary Recovery

and No Other

Nonmonetary Recovery

(N=152–156)

Transferable

coupons

19 (6%) 8 (5%) 6 (4%)

Nontransferable

coupons

10 (3%) 3 (2%) 2 (1%)

Injunction 29 (9%) 6 (3%) 5 (3%)

Cy pres class/public

interest award

4 (1%) 3 (2%) 2 (1%)

Courts and commentators have criticized the use of coupons, particularly

nontransferable coupons with no market value, to settle class action lawsuits.46 As

Table 17 shows, attorneys reported that transferable coupons were part or all of the

recovery in 19 cases (6% of all cases). Of those cases, 8 (5% of cases without a

monetary recovery) had no monetary recovery, and in 6 cases (4% of cases with no

other recovery) transferable coupons represented the only remedy provided to the

class.47 Nontransferable coupons were reported in 10 cases (3% of all cases), all but 3

of which (2% of cases with no monetary recovery) were accompanied by a monetary

recovery for the class. In 2 cases (1% of cases with no other recovery), nontransferable

coupons were the sole remedy for the class.

 

46. See, e.g., In re General Motors Corp. Pick-Up Truck Fuel Tank Prods. Liab. Litig., 55 F.3d 768,

808–09 (3d Cir. 1995); see also Deborah Hensler et al., Class Action Dilemmas 488–89 (2000).

47. We did not obtain information about whether the transferable coupons were in fact marketable.
Attorney Reports on the Impact of Amchem and Ortiz on Choice of Forum in Class Action Litigation

FJC Report to the Advisory Committee on Civil Rules, April 2004

46

(d) Attorney fees and expenses

Attorney fees have been characterized as “the lightning rod in the controversy over

damages class actions.”48 Attorney fees and expenses were reported for 103 of 142

cases in which there was a monetary recovery or settlement for a class. The typical

case included fees and expenses that amounted to 29% of the total recovery.49 At the

high end, in 25% of cases at least 36% of the total recovery was allocated to attorney

fees and expenses. At the low end, in 25% of the cases 9% or less of the recovery went

to attorney fees and expenses.

(e) Summary

Reviewing the outcomes of the named cases in our survey of counsel largely confirms

previous Center research on class actions litigation in federal courts.50 In both Center

studies, a minority of cases filed as class actions survived the litigation process to the

point of having a class certified. Other cases tended to be dismissed, granted summary

judgment, or resolved by settling the claims of the named plaintiffs.

Certified class actions generally produced settlements and monetary recoveries.

The typical recovery or settlement was $800,000.

We uncovered evidence of transferable and nontransferable coupon recoveries in

29 cases, representing 9% of cases with a class recovery. Three of those cases involved

nontransferable coupons and no monetary remedy.

We found that attorney fees typically represented about 29% of the monetary

recovery or settlement and that one case in four involved fees of 36% or more,

findings that were also very close to those reported in the 1996 FJC study.

(f) Conclusions

For a summary of the empirical conclusions discussed in this report, see “Overall

conclusions regarding Amchem and Ortiz factors” at the beginning of the Executive

Summary, supra page 4.

 

48. Hensler, supra note 46 at 434.

49. These data dovetail with the results of the 1996 FJC study in which researchers reported that the

“fee-recovery rate infrequently exceeded the traditional 33.3% contingency fee rate. Median rates ranged

from 27% to 30%.” FJC Empirical Study, supra note 37 at 69.

50. See generally, id.
Appendix
Blank page inserted for correct pagination

when printing double-sided copies.
Attorney Reports on the Impact of Amchem and Ortiz on Choice of Forum in Class Action Litigation

FJC Report to the Advisory Committee on Civil Rules, April 2004 – Appendix

49

Methods Appendix

A case-based survey

After consultation with the Class Action Subcommittee and the Advisory Committee,

we decided to conduct a survey of counsel in a select set of closed class action cases

and to explore the full panoply of considerations that might have affected attorneys’

decisions when choosing forums in particular cases. We determined that such an

approach would enable us to get a contextual picture of the role that prior class

certification and settlement approval decisions played in attorneys’ calculations about

where to file or whether to remove a case.

We designed a questionnaire, again in conjunction with the Subcommittee and the

Advisory Committee, to uncover and measure—in class actions recently terminated in

federal courts51—the relative importance of multiple factors that might influence the

decision about whether to file in federal or state court. By asking about multiple

factors, we can avoid the assumption that class action or settlement rules represent

determinative factors. Also, a case-based approach links the attorneys’ views to a

concrete decision made in a case, helping avoid the distortions that hypothetical or

general questions might elicit. Using a case-based approach also provides the benefit

of allowing us to test aggregate relationships between views expressed in the

questionnaire and the court rulings and outcomes in a large sample of recent cases.

We were able to compare the perceived predispositions of federal and state judges, as

identified by the attorneys, with the judicial rulings, procedural outcomes, and

monetary recoveries and settlements in the cases in which such predispositions were

thought to exist.

We also asked attorneys directly whether the U.S. Supreme Court’s rationales

affected their decisions about where to file or whether to remove class action cases

being studied. We then supplemented that case-based approach with a general

question designed to elicit the attorneys’ opinions about how Amchem and Ortiz have

affected class action litigation in federal and state courts. That approach poses the

relevant question clearly and directly. There is a risk that, by isolating and focusing

attention on the Amchem-Ortiz factors, the question posed might have led attorneys to

overstate the importance of those cases. As discussed in Part 1(c) of the report, the

study shows a wide disparity between the opinions of attorneys and their collective

experiences in the named cases.

 

51. Note that for statistical purposes, termination of the case in federal court occurs when a federal

district court remands to a state court a case originally filed in that court. The case may, of course,

continue to be litigated in the state court. We asked attorneys to include the outcome of the case in state

court in their responses to relevant survey questions.
Attorney Reports on the Impact of Amchem and Ortiz on Choice of Forum in Class Action Litigation

FJC Report to the Advisory Committee on Civil Rules, April 2004 – Appendix

50

Structuring the data set

Typically, plaintiff attorneys have a choice of filing class actions in state or federal

court. For example, they may be able to choose whether to include federal claims in

their actions or whether to include at least one defendant with the same state

citizenship as at least one named plaintiff. Defendants and their attorneys often have

the opportunity to remove a class action from state to federal court, on the grounds

that a federal question is at issue; that there is complete diversity of citizenship among

the litigants; or that plaintiffs’ efforts to destroy diversity jurisdiction by adding a local

defendant amounted to a fraudulent joinder. Defendants who act in a timely manner

have an opportunity to choose between exercising their removal rights or remaining

in state court.

In our survey, by including cases that had been removed from state court, we have

been able to compare plaintiff counsels’ perceptions and motivations for filing

originally in state court with those of counsel who filed original actions in federal

courts. We have also been able, to a limited extent, to compare defendant counsel who

removed cases to federal courts with defendant counsel in cases filed originally in

federal court. Unfortunately to keep the study manageable we did not have the option

of including defendants who had chosen to remain in state court: To do so would have

required identifying or creating a database of state court class action filings, a task

beyond our time and resources.

The unit of analysis in Parts 1 and 3 is the report of an attorney; the unit of

analysis in Parts 2, 4, and 5 is the named case. For the case-level analyses, when we

received responses from both sides of a case we assigned each response a weight of 0.5

and included both responses in the analysis. In total, we received 728 responses from

attorneys in 621 cases. The multivariate analyses focused on the filing decisions of

plaintiff attorneys and accordingly gave full weight to all of the attorney responses, as

did the analyses in Part 3 relating to judicial predispositions, which also included

responses from all plaintiff attorneys and defendant attorneys who removed cases to

federal court.

Population of class action terminations

We used the database of class action cases that we created for the Federal Judicial

Center’s “Effects of Amchem/Ortiz on the Filing of Federal Class Actions: Report to the

Advisory Committee on Civil Rules” (Sept. 9, 2002, available at www.fjc.gov) which

included class action filings for the period January 1, 1994, through June 30, 2001.

For this research we broadly defined class action filings to be cases where a class

allegation was either considered or made at some point in the life of the case but not

necessarily certified by the court. To avoid multiple counting of cases dealing with the

same legal claims, we identified which cases had been consolidated, either within a

district or across districts by consolidation orders or by orders of the Judicial Panel on

Multidistrict Litigation (JPML). We then included only the lead case in the database.
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FJC Report to the Advisory Committee on Civil Rules, April 2004 – Appendix

51

We searched for class action cases using the on-line services of LexisNexis

CourtLink.52 This service maintains a database of docket sheets for nearly all the

federal district courts.53 CourtLink’s service allows full text searching capabilities of

the electronic docket files maintained in its “CaseStream Historical” database. We

supplemented this approach with data from the Integrated Database (IDB), an

historical database of all federal cases. We also obtained data from the JPML to

crosscheck our listing of multidistrict litigation (MDL) cases.

In our database there were 15,037 class action cases (excluding all prisoner cases

and cases with a pro se litigant) from 82 districts.54 The cases were either “unique”

class actions not directly related to any other class action, lead class actions in

intradistrict consolidations, or lead class actions in interdistrict consolidations.

For the current study, we were mainly interested in cases that were filed as

original proceedings or removed from state court.55 Additionally, to provide a basis for

examining choice of forum, we wanted to study class actions with a jurisdiction of

federal question or diversity of citizenship.56 We determined that 6,386 (42%) of the

cases in the original database included class actions that terminated between July 1,

1999 and December 31, 2002 (regardless of when they were originally filed).

We excluded from consideration certain types of cases that were categorically

unlikely to be affected by Amchem/Ortiz. The cases excluded from consideration were

(1) all labor cases; (2) all securities cases57; (3) civil rights cases originally filed in

federal court based on federal question jurisdiction; and (4) cases described as “other

(federal) statutes” that had been originally filed in federal court and were based on

federal question jurisdiction. In most or all of the above cases, the predominance of

 

52. Previous Center research on class actions revealed that the Integrated Database (IDB) seriously

undercounted the number of class actions in federal courts. Examples include data gathering for the

Center’s 1996 empirical study of class actions and more recent research for interlocutory appeals. See

Thomas E. Willging, Laural L. Hooper & Robert J. Niemic, An Empirical Study of Class Actions in Four

Federal District Courts: Final Report to the Advisory Committee on Civil Rules (Federal Judicial Center

1996) at Appendix D.

53. The exceptions are Alaska, Guam, Northern Mariana Islands, Nevada, Virgin Islands, and

Wisconsin-Western. These courts were not linked to the Public Access to Court Electronic Records

(PACER) system at the time of our search.

54. For practical reasons we excluded twelve districts in which we could not electronically access

docket data. These districts are Alabama-Middle, Alaska, Arkansas-Western, Guam, Indiana-Southern,

Northern Mariana Islands, North Carolina-Eastern, Nevada, New Mexico, Oklahoma-Eastern, Virgin

Islands, and Wisconsin-Western.

55. Focusing on original proceedings and removed cases excludes cases that originated on remand

from an appellate court, that were reopened or reinstated, that were transferred from another district, or

that were transferred by the MDL panel.

56. Focusing on federal question and diversity-of-citizenship jurisdiction excludes cases involving

the United States as a plaintiff or defendant.

57. In our earlier report, we found that Amchem/Ortiz had no significant impact on class action filing

rates for securities cases. We excluded securities cases from the current study because the Securities

Litigation Uniform Standards Act of 1998 steers those actions into federal court, leaving little room for

plaintiffs to choose to file in state court. We also excluded other cases because of their predominantly

federal orientation.
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federal statutory claims seems likely to render their filing in federal court as more of a

routine decision that would not reveal any of the state-federal dynamics that are the

core of our inquiry.

After this exclusion, we selected cases and identified lead plaintiff and defendant

counsel in those cases based on Integrated Database (IDB) origin codes for “original

proceedings” and “removed from state court” and based on IDB jurisdiction codes for

“federal question” and “diversity of citizenship.” Our final sample included 1,418 class

action cases.

In summary, the database included cases that involved (1) personal injury and

property damage claims based on diversity or a federal question filed as an original

action in federal court or removed from state court; (2) contract claims based on

diversity or a federal question filed as an original action in federal court or removed

from state court; (3) other statutes claims based on diversity filed as an original action

in federal court or removed from state court or a federal question removed from state

court; and (4) civil rights claims based on diversity and removed from state court.

Content of the questionnaire

Each questionnaire consisted of four sections. See Questionnaire Appendix for copies

of the four versions of the questionnaire, one for each type of attorney (plaintiff,

defendant) in each type of case (removed, not removed). The first section of each

questionnaire sought general information on case characteristics, for example, about

the nature of the claims, the make-up of the class (e.g., number, residence), the

outcome of the class allegations, monetary and nonmonetary recovery, costs of

litigation, and an overview of competing or overlapping class actions filed with a

similar subject matter that were filed in another court.

The second section of each questionnaire involved selecting a state or federal

forum. Attorneys were asked to select reasons that were important in their decision to

file in state or federal court; rate possible sources of favoritism that may have affected

their decision to file in state or federal court; and their impression of any

predisposition a state or federal judge may have towards the interests of their clients.

The third section of each questionnaire dealt with the impact of Amchem/Ortiz,

Attorneys were asked about the impact of Amchem/Ortiz on their decision to file the

named case in state or federal court or to remove that case from state court. Attorneys

were also asked to report any general impact Amchem/Ortiz may have had on class

action litigation generally.

The fourth section of each questionnaire sought information on the attorneys’ law

practices and experience. Attorneys were asked the size of their law practice; the

length of time they have practiced; the percentage of time spent on civil litigation in

the past five years; and the percentage of time spent on class action litigation in the

past five years.
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Pilot test of questionnaire

Before collecting data, we wanted class action attorneys to give us feedback about our

attorney questionnaire. We asked the ABA Section of Litigation (and its Committee on

Class Actions and Derivative Suits) for names of attorneys who could pilot test our

questionnaire.58 We were given the names of ten attorneys who primarily represent

plaintiffs and ten attorneys who primarily represent defendants.

We mailed twenty questionnaires and asked these attorneys to review and

complete the questionnaires and provide us with comments and suggestions.

Attorneys were asked to think about a recent, but closed, class action that their firm

had litigated. We asked attorneys to note any instruction or question that was unclear

and to give us feedback on whether we had included all reasonable response options

for each question. We received responses from ten attorneys (seven plaintiff attorneys

and three defendant attorneys) and were able to address their comments and, we

believe, make the questionnaire more comprehensible and complete.

Determining attorney sample

We downloaded the docket sheets for the 1,418 class action cases in our sample. From

these docket sheets we developed a database of the names and addresses of the lead

attorneys for both the plaintiff and defendant parties in the case. Our plan was to mail

questionnaires to the plaintiff attorney and defense attorney for each case in the

sample. In many instances we had attorneys appearing in more than one case in our

sample. We attempted to survey the second or third named attorney (if there was one)

in lieu of the lead attorney for those cases in which the lead attorney was already

chosen for another case. There were 183 cases that were eliminated from the database

when we could not find an attorney because all listed attorneys were already chosen

for another case or because no attorney information was provided on the docket sheet.

Collecting data

We mailed questionnaires to 2,132 attorneys (1,048 plaintiff attorneys and 1,084

defense attorneys59) who represented 1,235 cases. Variations of the questionnaire were

keyed to the four different types of cases and attorneys: plaintiff and defendant

attorneys in removed cases and plaintiff and defendant attorneys in cases filed

originally in federal court. A cover letter signed by the Honorable Lee H. Rosenthal,

chair of the Class Action Subcommittee of the Advisory Committee on Civil Rules,

urged the attorneys to assist the committee by responding to the questionnaire. The

letter referred to a specific class action case along with the case’s docket number. We

included a postage-paid return envelope.

 

58. We would like to thank Dinita L. James, co-chair of that committee, and the attorneys who

assisted us with our pilot test.

59. Docket sheets did not always list attorneys representing both sides.
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Approximately two weeks after the initial mailing we sent a follow-up postcard to

each attorney that thanked those attorneys who completed the questionnaire and

prompted those who had not to return their questionnaire. Approximately one week

after we sent the postcards, we mailed out a second questionnaire to any attorney who

had failed to respond.

Response rate

We received a completed questionnaire from 72860 attorneys in the sample

representing 621 different cases. The response rate was 39%.61

Representativeness of the responses

In the entire sample of attorneys, 49% represented plaintiffs and 51% represented

defendants; among those who responded, 43% represented plaintiffs and 57%

represented defendants. We also asked respondents what types of clients they

generally represented, and we found that 35% represented primarily plaintiffs, 49%

represented primarily defendants, and 14% represented plaintiffs and defendants

equally.

On average, responding attorneys devoted 49% (median = 50%) of their work time

during the past five years to civil litigation in state court, 41% (median = 40%) to civil

litigation in federal court, and 34% (median = 20%) to class action litigation (in state

and federal court). On average, responding attorneys had been involved in 13 (median

= 5) class action cases in the past three years.

A plurality (39%) of responding attorneys practiced in firms of fifty or more

attorneys; 26% practiced in firms of two to ten; 24% practiced in firms of eleven to

forty-nine; and 2% were government attorneys. On average, these attorneys had

practiced law for 22 years; 91% had practiced law for at least ten years.

We compared the cases underlying the responses with cases in the original sample

and found the responses to be representative of the sample as a whole. We found some

differences between the original set of cases and the subset of cases in which

responding attorneys were counsel. In both sets, the durations (from filing to

disposition) showed no substantial differences. We did find differences on certain

methods of disposition, the original set of cases were more likely to have the

disposition of “other” types of dismissal and dismissed as “settled” than the subset of

responding cases. We also found that the original subset of cases were more likely to

have no action taken by the court than the subset of responding cases. Most types of

cases were equally represented among both groups; however, there were significantly

 

60. There were 730 questionnaires returned but because of an incorrect nature-of-suit code in our

initial database, we determined that one involved a securities case and another a labor case, and we

excluded these cases from the study.

61. The total number of valid questionnaires was 1,851. Of the 2,132 questionnaires mailed we had

32 attorneys tell us the case was not a class action, 98 questionnaires were returned because of a bad

addresses, and 151 questionnaires were returned by attorneys who told us they did not have enough

information to answer the questionnaire.
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more contract cases in the original set of cases. Responding cases were more likely to

be removed and remanded than the original set of cases.

Data analysis

We have used logistic regression to examine relationships among variables as

discussed in Part 1(a). Other data analysis is generally based on cross-tabulations of

the data, comparison of chi-square tests of differences between pairs of variables, and

tests of differences between medians.
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when printing double-sided copies.
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Regression Methods and Results

Below we present the techniques used to analyze attorneys’ choice of forum as

presented in Part 1(a). We provide additional statistical results and also an alternative

way to explain the findings.

Multivariate analyses62

Multivariate regression is a statistical technique that quantifies the influence of each of

several factors (independent variables) on the phenomenon being studied (dependent

variable).63 Logistic regression, a type of multivariate analysis, is the preferred

statistical approach for analysis of dichotomous dependent variables. Because the

dependent variable is dichotomous (filing in federal or state court), we used logistic

regression. Logistic regression models estimate the effect of each independent variable

(predictor) on the odds that a case would be filed in state court while controlling for

other variables in the equation. An odds ratio is simply the ratio of the probability of

filing in state court to the probability of filing in federal court.

The analysis first examines the unique ability of each of the independent variables

to explain attorneys’ choice of forum. Results for the logistic model are reported as

odds ratios. When interpreting odds ratios, an odds ratio of one means that someone

with that specific characteristic is just as likely to file in state court as in federal court.

An odds ratio of greater than one indicate a higher likelihood of filing in state court.

Forward logistic regression64 was conducted to determine which independent

variables were predictors of choice of forum. Ten models are presented, the dependent

variable in each is whether the case was filed in federal or state court (federal court =

0, state court = 1). Each model includes different blocks of independent variables.

Table A-1 shows the descriptive statistics for each of the independent variables.

Logistic regression results are presented in Table A-2 at the end of this appendix.

 

62. The multivariate analyses excluded 72 cases that were removed to federal court but remanded to

state court or dismissed for lack of jurisdiction because the absence of federal jurisdiction indicated that

the plaintiff did not have a meaningful choice of forum.

63. See generally David W. Hosmer & Stanley Lemeshow, Applied Logistic Regression 31–90 (2d ed.

2000) (describing and applying logistic regression models).

64. We used both SPSS 10.0 and SAS version 8.2 to model the data.
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Table A-1: Descriptive statistics for logistic regression models

Variable N Minimum Maximum Mean

Standard

Deviation

Judicial predisposition 211 -1 1 -.26 .68

Source of law 211 -1 1 -.64 .68

State facts 211 0 100 68.00 38.59

Substantive law 211 0 1 .24 .43

Discovery rules 211 0 1 .25 .40

Judicial receptiveness 211 0 1 .32 .47

Cost of litigation 211 0 1 .25 .43

Jury award 211 0 1 .13 .34

Location of court 211 0 1 .27 .45

Other cases 92 -1 1 -.33 .83

Percent of civil litigation 210 0 100 36.00 26.86

Number of class actions 203 0 200 12.57 23.22

Note that the number of respondents in the regression analyses is smaller than the

total number of plaintiffs in the study. We chose to eliminate from the regression

analyses attorney reports with any missing responses for the relevant variables. For a

response to be included in the analyses we needed data on all of the factors in the

model. We thought we would get a more accurate model of attorney choice of forum if

we only looked at complete responses. Since we were asking attorneys to answer

questions on a case that may have terminated over three years ago, we were unsure

what the missing responses really meant. Before eliminating any data we examined

whether there were any differences between the data we wanted to eliminate and the

data with complete responses. The data with complete responses were representative

of the sample of plaintiffs as a whole.

Model 1: Basic model

Regression results indicate that an overall model of three predictors was statistically

reliable between state and federal courts. This model has three predictors—perceived

judicial predisposition,65 source of law,66 and state facts67—that are associated with

 

65. The variable was coded -1 for a perceived federal judicial predisposition, 0 for no perceived state

or federal judicial predisposition, and 1 for a perceived state judicial predisposition.

66. The variable was coded -1 for a majority of federal claims (which included responses that the

case had all federal claims or a majority of federal claims), 0 for an equal number of state and federal

claims, and 1 for a majority of state claims (which included responses that the case had all state claims or

a majority of state claims).
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attorneys’ choice of forum. Each predictor and the overall model are significant at the

.01 level. The overall model predicted 79.15% of the responses correctly. The

goodness-of-fit was adequate at .08.68

The odds ratio is a common way of interpreting this type of data. With the other

significant predictors in the model being held constant, an attorney who perceives a

state judicial predisposition is 6.72 times more likely than an attorney who perceives a

federal judicial predisposition to file the case in federal court. Similarly, a case with a

majority of state claims was 4.88 times more likely than a case with a majority of

federal claims to be filed in state court. Finally, a case with high state facts is 90%

more likely than a case with low state facts to be filed in state court.

Perceived judicial predisposition, source of law, and state facts

Chart 1 shows the percentage of cases expected to be filed in state court based on

three factors and data we actually observed. The basic model is a projection derived

from our data, but note that the projection is not identical to our data.69 An example

will clarify this point. According to the basic model (which attempts to predict what

might occur with future cases) we would expect that 92% of cases with high state

facts, a perceived state predisposition, and a majority of state law will be filed in state

court. In our data, we found that 86% of our respondents who reported those specific

factors filed their case in state court. The predictive model will never correctly predict

all possible outcomes, but the difference between our actual data and the predicted

outcome is small, which tells us the basic model is a good model.

Chart 1 shows that the probability of filing in state court is at its highest level

when all factors point towards the state court (fourth category along the bottom).

When the case has a mix of both state and federal factors the probability of filing in

state court is higher when attorneys perceive a state judicial predisposition toward

their clients’ interests (third category) than if there is a majority of state claims but

attorneys perceive a federal judicial predisposition (second category). The probability

of filing in state court is at its lowest level when all factors point toward federal court

(first category). We also found that the probability of filing in state court is higher if

the average of the percent of class members and events occurring in the state is high

(dashed line) versus low (solid line).

 

67. “State facts” is a composite variable we created. It represents the average of the percentage of

class members residing in the state where the class action was filed and the percentage of claims-related

events that occurred in that state.

68. The deviance goodness-of-fit statistic is reported. The goodness-of-fit statistic can range from 0 to

1 and measures how well the model is predicting the actual data. A model is appropriate if the goodnessof-fit index is greater than .05.

69. The logic behind the model assumes that what we actually observed are random departures from

the predicted outcome and we are charting only predicted outcomes or the probability of filing in state

court.
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Chart 1: Base model – probability of filing in state court

0%

10%

20%

30%

40%

50%

60%

70%

80%

90%

100%

Federal Predisposition

Federal Law

Federal Predisposition

State Law

State Predisposition

Federal Law

State Predisposition

State Law

Low State Facts High State Facts

In the final stage of analysis, we assessed the potential impact of other factors on

attorneys’ choice of forum while statistically controlling for factors in the basic model.

We present nine other models below that include additional factors that are associated

with attorneys’ choice of forum.
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Model 2: Substantive law

This model has four predictors (perceived judicial predisposition, source of law, state

facts, and favorableness of substantive law) that are associated with attorneys’ choice

of forum. Each predictor and the overall model are significant at the .05 level. The

overall model predicted 78.20% of the responses correctly. The goodness-of-fit was

adequate at .50.

With the other significant predictors in the model being held constant, an attorney

who chose the favorableness of substantive law as the reason for filing in a particular

forum was 11.95 times more likely to file the case in state court than an attorney who

did not choose this as a reason.

Chart 2 shows the probability of filing in state court when the attorney cites the

favorableness of the substantive law as a reason for choosing a forum or does not

choose this factor as a reason. The probability of filing in state court is much higher

when the attorney expects the substantive law to be more favorable to his or her case.

Chart 2: Impact of favorability of substantive law on probability of filing in

state court

0%

10%

20%

30%

40%

50%

60%

70%

80%

90%

100%

Federal Predisposition Federal Predisposition State Predisposition State Predisposition

Federal Law State Law Federal Law State Law

Reason Not a Reason
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Model 3: Discovery rules

This model has four predictors (perceived judicial predisposition, source of law, state

facts, and favorableness of discovery rules) that are associated with attorneys’ choice

of forum. Each predictor and the overall model are significant at the .01 level. The

overall model predicted 77.73% of the responses correctly. The goodness-of-fit was

adequate at .37.

Chart 3 shows that the other significant predictors in the model being held

constant, an attorney who chose the favorableness of discovery rules as the reason for

filing in a particular forum was 2.54 times more likely to file the case in state court

than an attorney who did not choose this as a reason.

Chart 3: Impact of favorability of discovery rules on probability of filing in

state court

0%

10%

20%

30%

40%

50%

60%

70%

80%

90%

100%

Federal Predisposition Federal Predisposition State Predisposition State Predisposition

Federal Law State Law Federal Law State Law

Reason Not a Reason
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Model 4: Judicial receptiveness

This model has four predictors perceived judicial predisposition, source of law, state

facts, and judicial receptiveness to claims on the merits) that are associated with

attorneys’ choice of forum. Each predictor and the overall model are significant at the

.05 level. The overall model predicted 77.25% of the responses correctly. The

goodness-of-fit was adequate at .17.

Chart 4 shows that with the other significant predictors in the model being held

constant, an attorney who chose the judicial receptiveness to claims on the merits as

the reason for filing in a particular forum was 2.34 times more likely to file the case in

state court than an attorney who did not choose this as a reason.

Chart 4: Impact of judicial receptiveness on probability of filing in state court

0%

10%

20%

30%

40%

50%

60%

70%

80%

90%

100%

Federal Predisposition Federal Predisposition State Predisposition State Predisposition

Federal Law State Law Federal Law State Law

Reason Not a Reason
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Model 5: Lower cost of litigation

This model has four predictors (perceived judicial predisposition, source of law, state

facts, and lower cost of litigation) that are associated with attorneys’ choice of forum.

Each predictor and the overall model are significant at the .01 level. The overall model

predicted 77.25% of the responses correctly. The goodness-of-fit was adequate at .42.

Chart 5 shows that with the other significant predictors in the model being held

constant, an attorney who chose the lower cost of litigation as a reason for filing in a

particular forum was 4.00 times more likely to file the case in state court than an

attorney who did not choose this as a reason.

Chart 5: Impact of cost of litigation on probability of filing in state court

0%

10%

20%

30%

40%

50%

60%

70%

80%

90%

100%

Federal Predisposition Federal Predisposition State Predisposition State Predisposition

Federal Law State Law Federal Law State Law

Reason Not a Reason

`
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Model 6: Higher jury award

This model has four predictors (perceived judicial predisposition, source of law, state

facts, and higher jury award) that are associated with attorneys’ choice of forum. Each

predictor and the overall model are significant at the .10 level. The overall model

predicted 80.57% of the responses correctly. The goodness-of-fit was adequate at .24.

Chart 6 shows that with the other significant predictors in the model being held

constant, an attorney who chose the higher jury award as the reason for filing in a

particular forum was 3.46 times more likely to file the case in state court than an

attorney who did not choose this as a reason.

Chart 6: Impact of jury award on probability of filing in state court

0%

10%

20%

30%

40%

50%

60%

70%

80%

90%

100%

Federal Predisposition Federal Predisposition State Predisposition State Predisposition

Federal Law State Law Federal Law State Law

Reason Not a Reason

`
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Model 7: Convenience of court location

This model has four predictors (perceived judicial predisposition, source of law, state

facts, and convenience of court location) that are associated with attorneys’ choice of

forum. Each predictor and the overall model are significant at the .05 level. The

overall model predicted 77.73% of the responses correctly. The goodness-of-fit was

adequate at .34.

Chart 7 shows that with the other significant predictors in the model being held

constant, an attorney who chose the convenience of the court location as the reason

for filing in a particular forum was 2.60 times more likely to file the case in state court

than an attorney who did not choose this as a reason.

Chart 7: Impact of court location on probability of filing in state court

0%

10%

20%

30%

40%

50%

60%

70%

80%

90%

100%

Federal Predisposition Federal Predisposition State Predisposition State Predisposition

Federal Law State Law Federal Law State Law

Reason Not a Reason

`
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Model 8: Competing or overlapping actions

This model has four predictors (perceived judicial predisposition, source of law, state

facts, and where other cases70 were filed) that are associated with attorneys’ choice of

forum. Each predictor and the overall model are significant at the .05 level. The

overall model predicted 79.35% of the responses correctly. The goodness-of-fit was

adequate at .20.

Chart 8 shows that with the other significant predictors in the model being held

constant, a case was 1.96 times more likely to be filed in state court if a competing or

overlapping action was filed in state court.

Chart 8: Impact of competing or overlapping cases on probability of filing in

state court

0%

10%

20%

30%

40%

50%

60%

70%

80%

90%

100%

Federal Predisposition Federal Predisposition State Predisposition State Predisposition

Federal Law State Law Federal Law State Law

Other Case Filed in Federal Court Other Case Filed in State Court

 

70. The variable was coded -1 for other cases filed in federal court, 0 for other cases filed in both

state and federal court, and 1 for other cases filed in state court.
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Model 9: Federal civil litigation

This model has four predictors (perceived judicial predisposition, source of law, state

facts, and percent of civil litigation in the past five years filed in federal court) that are

associated with attorneys’ choice of forum. Each predictor and the overall model are

significant at the .05 level. The overall model predicted 77.14% of the responses

correctly. The goodness-of-fit was adequate at .20.

With the other significant predictors in the model being held constant, an attorney

who has filed a high level of his or her civil litigation cases in federal court in the past

five years is more likely to file the class action in federal court than an attorney who

filed a low level of their civil litigation cases in federal court.

Chart 9 shows that an attorney with a high level (60%) of federal civil litigation is

92% more likely to file in federal court than an attorney with a low level (10%) of

such litigation.

Chart 9: Impact of percentage of civil cases filed in federal court in the past five

years on the probability of filing in state court

0%

10%

20%

30%

40%

50%

60%

70%

80%

90%

100%

Federal Predisposition Federal Predisposition State Predisposition State Predisposition

Federal Law State Law Federal Law State Law

Low Amount of Federal Civil Litigation High Amount of Federal Civil Litigation
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Model 10: Number of class actions filed in state court

This model has four predictors (perceived judicial predisposition, source of law, state

facts, and number of class actions filed in state court in the past three years) that are

associated with attorneys’ choice of forum. Each predictor and the overall model are

significant at the .05 level. The overall model predicted 78.82% of the responses

correctly. The goodness-of-fit was adequate at .20.

With the other significant predictors in the model being held constant, an attorney

who had filed seven class actions in state court in the past three years is 27.5% more

likely to file the named case in state court than an attorney who has filed two class

actions in state court.

Chart 10 shows the probability of filing in state court with a high number of class

actions filed in state court in the past three years (seven class actions) or a low

number of class actions filed in state court (two class actions).

Chart 10: Impact of number of class actions filed in state court in the past three

years on the probability of filing in state court

0%

10%

20%

30%

40%

50%

60%

70%

80%

90%

100%

Federal Predisposition Federal Predisposition State Predisposition State Predisposition

Federal Law State Law Federal Law State Law

Low Number of Class Actions High Number of Class Actions
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Table A-2: Results of logistic regression

Model 1 Model 2 Model 3

Variable Coefficient Wald Coefficient Wald Coefficient Wald

Constant 0.81 4.82* 1.12 7.97* 1.10 7.55*

Legal source 0.89 13.36* 1.03 15.07* 0.90 13.68*

State facts -0.01 6.44* -0.01 4.2* -0.01 7.72*

Predisposition 1.21 23.52* 1.15 18.7* 1.23 23.08*

Substantive law -2.48 12.73*

Discovery rules -0.93 4.28*

Model chi-square [df] 51.45* [3] 71.72* [4] 56.10* [4]

Block chi-square [df] 20.28* [1] 4.66* [1]

McFadden’s R2 0.19 0.27 0.21

Model 4 Model 5 Model 6

Variable Coefficient Wald Coefficient Wald Coefficient Wald

Constant 1.00 6.78* 1.18 8.58* 0.87 5.42*

Legal source 0.88 12.83* 0.85 11.6* 0.90 13.37*

State facts -0.01 6.1* -0.01 7.64* -0.01 5.62*

Predisposition 1.18 21.65* 1.27 23.8* 1.15 20.79*

Judicial receptiveness -0.85 4.29*

Costs of litigation -1.39 8.39*

Jury awards -1.24 2.92*

Model chi-square [df] 56.03* [4] 61.30* [4] 55.06* [4]

Block chi-square [df] 4.59* [1] 9.86* [1] 3.62* [1]

McFadden’s R2 0.21 0.23 0.21
Attorney Reports on the Impact of Amchem and Ortiz on Choice of Forum in Class Action Litigation

FJC Report to the Advisory Committee on Civil Rules, April 2004 – Appendix

71

Table A-2: Results of logistic regression (cont’d)

Model 7 Model 8

Variable Coefficient Wald Coefficient Wald

Constant 1.23 8.16* 1.19 3.37*

Legal source 0.90 12.87* 1.07 5.53*

State facts -0.01 8.88* -0.02 4.77*

Predisposition 1.16 21.23* 1.05 6.11*

Location of court -0.95 4.73*

Other cases 0.67 3.96*

Model chi-square [df] 56.51* [4] 25.70* [4]

Block chi-square [df] 5.08* [1] 4.03* [1]

McFadden’s R2 0.21 0.24

Model 9 Model 10

Variable Coefficient Wald Coefficient Wald

Constant -0.03 0.01 1.05 6.19*

Legal source 0.74 8.65* 0.90 12.95*

State facts -0.01 4.62* -0.01 4.76*

Predisposition 1.25 23.31* 1.21 22.36*

Civil cases in federal court 0.02 7.24*

Class actions filed state court -0.06 3.06*

Model chi-square [df] 58.69* [4] 56.10* [4]

Block chi-square [df] 7.47* [1] 4.16* [1]

McFadden’s R2 0.22 0.22
Blank page inserted for correct pagination

when printing double-sided copies.
73

Questionnaire Appendix

Questionnaire 1: Plaintiff in Case Filed Originally in State Court and Removed to

Federal Court

Questionnaire 2: Plaintiff in Case Filed Originally in Federal Court

Questionnaire 3: Defendant in Case Filed Originally in State Court and Removed to

 Federal Court

Questionnaire 4: Defendant in Case Filed Originally in Federal Court
Blank page inserted for correct pagination

when printing double-sided copies.
Questionnaire 1:

Plaintiff in Case Filed Originally in State Court and

Removed to Federal Court
Blank page inserted for correct pagination

when printing double-sided copies.
Please return the questionnaire by March 31, 2003

National Survey of Class Action Counsel in Federal Class Actions 

Regarding Federal and State Class Action Practices 

Designed and administered by the Federal Judicial Center

For the Advisory Committee on Civil Rules of the

Judicial Conference of the United States

Origin and Purpose

The purpose of this survey is to examine the factors affecting attorney and client decisions to 

litigate class actions in state or federal courts. This questionnaire was designed by the Federal 

Judicial Center at the request of the federal judiciary’s Advisory Committee on Civil Rules. The 

Center is a judicial branch agency whose duties include conducting research on the operation of 

the courts. The Center is conducting this research to assist the Advisory Committee in its ongoing 

examination of class action rules.

Who Should Complete the Questionnaire?

Court records show that you represented the plaintiff(s) in the case identified in the cover letter 

(the “named case”). Plaintiff(s) filed that case in state court as a class action or raised the issue of 

class certification at a later stage of the litigation. A defendant removed the action to federal court 

where it was either litigated or remanded to state court. If the named case was not filed in state 

court and removed to federal court, please check this box and return the cover letter and 

blank questionnaire in the enclosed envelope. We ask that an attorney who represented the plaintiff(s) in this case complete the questionnaire. 

We would like that attorney to be knowledgeable about key attorney decisions in the case. If that 

is someone other than you, please pass this questionnaire along to the appropriate attorney. If no

attorney with knowledge of key decisions is available, please check this box and return the 

cover letter and blank questionnaire in the enclosed envelope. We are sending a similar

questionnaire to attorneys for other parties in the litigation. 

Confidentiality

All information you provide that would permit anyone to identify the named case, the lawyers, or 

the parties is strictly confidential. Only a small number of staff within the Center’s Research 

Division will have access. Findings will be reported only in aggregate form. No individual litigant, 

attorney, or case will be identifiable. Center researchers will use the code number on the back of 

the questionnaire for administrative purposes only. Please check this box if you would like a summary of the survey results. Please return the questionnaire in the enclosed envelope addressed to the Federal Judicial 

Center (Class Action Counsel Survey), One Columbus Circle, N.E., Washington, D.C. 20002. 

If you have questions, please call Tom Willging at 202-502-4049 or Bob Niemic at 202-502- 4074.
National survey of counsel in class action litigation Federal Judicial Center March 2003 

2

Part I. Case Characteristics in the Named Case (See Cover Letter)

Please answer the questions in this Part with reference to the named case only. 

1. Which of the following best describes the proportion of claims based on federal and state law at the time the named 

case was filed?

Please check one: All claims were based on state law. 

The majority of claims were based on state law.

Claims were based on state and federal law about equally.

The majority of claims were based on federal law.

All claims were based on federal law.

I don’t know/Not applicable

2. How many members were in the class?---------------------------------------> approximately ________________ members

3. Members of the proposed class resided in how many state(s)?-------------------------------->approximately ______ states

4. What percentage of claimants resided in the state where the class action was filed?------------>approximately ______%

5. What percentage of claims-related transactions/events occurred in the state where class action was filed?---------------> 

approximately _____%

6. Did the federal district court remand the named case to state court?

Please check one:

 Yes------------------------->Answer questions 7-20 with respect to case events in the state court after remand.

 No-------------------------------------------->Answer questions 7-20 with respect to case events in federal court.

 I don’t know/Not applicable.------------->Answer questions 7-20 with respect to case events in federal court. 7a. The outcome on class certification in the named case was:

Please check one: The trial court decided not to certify a class for trial or settlement.---------------------->Proceed to question 8.

The trial court took no action on class certification.---------------------------------------->Proceed to question 8.

The trial court certified a class for trial or settlement.------------------------------------>Proceed to question 7b.

7b. The court certified a class:

Please check all that apply: For trial------------------------------------------------------------------------------------------->Proceed to question 9.

For settlement purposes only, before the parties presented a settlement to the trial 

court. --------------------------------------------------------------------------------------------->Proceed to question 9.

For settlement purposes only, after or at the same time the parties presented a settlement 

to the trial court.--------------------------------------------------------------------------------->Proceed to question 9.

8. If no class was certified, what happened?

Please check all that apply: Parties proposed a classwide settlement, but the court did not approve any settlement.

The court dismissed the case for lack of jurisdiction. The court dismissed the case on the merits. Class representative(s) settled on an individual basis. 

Parties voluntarily dismissed the case.

The court granted summary judgment motion.

Cases were tried on an individual basis.

Other (specify) _________________________________________________________

I don’t know/Not applicable 
National survey of counsel in class action litigation Federal Judicial Center March 2003 

3

9. If a class was certified, whether for trial or for settlement purposes only, what was the outcome of the class claims?

Please check all that apply: Parties proposed a classwide settlement, and the court approved that settlement. Parties proposed a classwide settlement, and the court approved a revised settlement. Parties proposed a classwide settlement, but the court did not approve any settlement.

Class representative(s) settled their own claims on an individual basis.

 Trial on class claims resulted in a judgment for the class. Trial on class claims resulted in a judgment for the defendant(s). The court dismissed all claims on the merits. Other (specify) _________________________________________________________

I don’t know/Not applicable

10. Identify whether anyone filed an opposition or objection in the trial court to any of the following: 

Please check all that apply: Certification for trial as a class action.

Certification for settlement as a class action.

Amount of attorney fees. 

 Terms of the proposed class settlement.

Class representatives’ settlement of their individual claims. 

 No opposition filed to certification for settlement or to settlement terms.------------->Proceed to question 12.

I don't know/Not applicable.------------------------------------------------------------------>Proceed to question 12.

11. Indicate the outcome in the trial court of each type of opposition or objection listed in the table below: 

Please place a check ( ) in the appropriate box for all that apply: Opposition or Objection Granted

Opposition or 

Objection 

Denied

Opposition or Objection WithdrawnNo Action 

Taken Not Applicable/ I Don't Know

Certification for trial as a 

class action

Certification for settlement as 

a class action

Amount of attorney fees

Terms of the proposed class 

settlement

12. Did any party or objector file an appeal (including interlocutory) of a court ruling in the named case? 

Please check one:

 Yes

No------------------------------------------------------------------------------------------------>Proceed to question 14.

 I don’t know/Not applicable------------------------------------------------------------------>Proceed to question 14.

13. What was the outcome of each type of appeal?

Please place a check ( ) in the appropriate box for all that apply: Appeal Affirmed Appeal 

Reversed

Appeal Remanded Appeal 

Withdrawn/

Dismissed

Appeal 

Settled

No 

Action 

Taken 

Not 

Applicable/ 

I Don't 

Know

Interlocutory appeal of class 

certification or denial of 

certification

Appeal of certification after final 

judgment

Approval of settlement

Disapproval of settlement

Appeal of judgment on the merits

Other appeal. Specify: ________________
National survey of counsel in class action litigation Federal Judicial Center March 2003 

4

14. When the litigation was concluded, whether by pretrial ruling, trial, settlement, or appeal, what was the total 

monetary recovery for the class? Exclude attorney fees and all expenses, monetary value of coupons, securities, or 

other non-monetary relief.

 Please check one:

 There was a monetary recovery.

How much was the total monetary recovery?---------------------------------------->approximately $_______ 

 How much of this amount was distributed to class members, if you know?----->approximately $_______ 

 There was no monetary recovery. 

 I don’t know/Not applicable

15. How much did the trial court award or approve for attorney fees and expenses?------------>approximately $________ 

 How much of that amount was for out-of-pocket attorney expenses (not including costs of settlement notices 

and costs of administering any settlement)?------------------------------------------------->approximately $_______ 

16. When the litigation was concluded, in addition to or in lieu of the monetary recovery, relief was distributed to class 

members in the form of:

Please check all that apply:

 There was no recovery.

 Transferable coupons, securities, or other instruments

 Nontransferable coupons or other instruments

 Injunctive or declaratory relief 

 Medical monitoring of potential injuries to class members

 Other (specify) ______________________________

 There was only a monetary recovery 

I don’t know/Not applicable

17. In addition to the named case, were other lawsuit(s) filed in state or federal court(s) dealing with the same subject matter and around the same time period (give or take a year or so)? 

 Please check one:

 Yes

No------------------------------------------------------------------------------------------------>Proceed to question 21.

 I don’t know/Not applicable------------------------------------------------------------------>Proceed to question 21.

18. Was a settlement of similar class claims proposed to any other court in any other case? 

Please check one:

 Yes

No------------------------------------------------------------------------------------------------>Proceed to question 21.

 I don’t know/Not applicable------------------------------------------------------------------>Proceed to question 21.

19. Were the other cases(s) referred to in question 17 or 18 originally filed in:

Please check one:

 Federal court

State court

Both Federal and State court

 I don’t know/Not applicable

20. What were the outcomes of those other cases?

Please check one:

 Same as the outcome in the named case The outcome in the other case(s) differed from the named case in the following ways (specify): 

 _______________________________________________________________________________

 I don’t know/Not applicable
National survey of counsel in class action litigation Federal Judicial Center March 2003 

5

Part II. Reasons for selecting a state forum

21. Please check each box that indicates a reason you filed the named case in state court:

Applicable Law

 All or most claims were based on state law.

All or most claims were based on the law of the state in which we filed the case.

 State substantive law was more favorable to our claims than federal substantive law. Convenience

 A majority of claims-related transactions or events took place within the state of filing.

 A majority of claims-related witnesses lived or worked in the state of filing.

 A majority of members of the proposed class lived or engaged in relevant activity in the state of filing.

 My co-counsel and I were more familiar with the procedures in state court.

 The location of the state court was more convenient for us, our clients, or witnesses in the named case.

Rules

 State discovery rules were more favorable to our case. State expert evidence (Daubert/Frye) rules were more favorable to our case.

State evidentiary rules were more favorable to our case.

 State class action rules in general imposed less stringent requirements for certifying a class action.

 State class action rules imposed less stringent requirements for notifying class members.

Interlocutory appeal was less likely to be available in state court.

Judicial Receptiveness

The state court was generally more receptive to motions to certify a class.

The state court was generally more receptive to motions to approve a class settlement.

The state court was generally more receptive to the claims on the merits. 

The state court was able to more expeditiously resolve this class action. 

 The state court had more resources available to handle this class action.

Costs and Fees

 The cost of litigation for my client would be lower in state court.

 The state court would be more likely to act favorably on our request for attorney fees.

Strategy

 We wanted to avoid being included in a federal multidistrict litigation transfer.

 The state court would be more likely to appoint my client and our law firm to represent the class.

 We wanted to present similar claims in a number of state courts. 

Other 

 I generally prefer to litigate in state court.

 A jury award in state court would likely be higher. Please specify any other reasons why you filed this action in state court. ________________________________________________________________________________________

________________________________________________________________________________________
National survey of counsel in class action litigation Federal Judicial Center March 2003 

6

22. To achieve the most favorable outcome for your client, you may have weighed certain party characteristics in your 

decision to file the named case in state court rather than in federal court. For each possible source of advantage or 

disadvantage listed below, please circle the appropriate number for the degree of advantage you expected at the time 

you chose to file the named case in state court. By filing in state court, we expected:

Source of advantage/disadvantage

Strong 

advantage 

for our 

client 

Advantage 

for our 

client 

No 

advantage or 

disadvantage 

for our client

Disadvantage 

for our client

Strong 

disadvantage 

for our client

Not 

Applicable/ 

I Don't 

Know

Defendant’s out-of-state residence 1 2 3 4 5 N/A

Defendant’s residence in another part of the state 1 2 3 4 5 N/A

Local residence(s) of class representative(s) 1 2 3 4 5 N/A

Gender, ethnicity, race, religion or 

socioeconomic status of a party or attorney on 

the plaintiff’s side

1 2 3 4 5 N/A

Gender, ethnicity, race, religion or 

socioeconomic status of a party or attorney on 

the defendant’s side.

1 2 3 4 5 N/A

Foreign national status of a class representative 

or class as a whole

1 2 3 4 5 N/A

Foreign national status of a defendant 1 2 3 4 5 N/A

Incorporated status of a class representative 1 2 3 4 5 N/A

Incorporated status of a defendant 1 2 3 4 5 N/A

Type of business conducted by a class 

representative or class (specify) ___________________________________

1 2 3 4 5 N/A

Type of business conducted by a defendant 

(specify) ___________________________

1 2 3 4 5 N/A

Class representative’s or class’s reputation in the 

community

1 2 3 4 5 N/A

Defendant’s reputation in the community 1 2 3 4 5 N/A

Other party characteristic (specify) ___________________________________1 2 3 4 5 N/A

Other source(s) of advantage or disadvantage 

(specify) __________________________________

__________________________________

1 2 3 4 5 N/A

23. When you filed the named case, which of the following statements best describes your impression about any 

predisposition of state or federal judges toward interests like your clients’? Please answer the question with respect 

to the state court judges and federal court judges most likely to hear the named case at the trial level.

 Please check one:

 Federal judges were more likely than state judges to rule in favor of interests like those of my clients.

 State judges were more likely than federal judges to rule in favor of interests like those of my clients.

 We perceived no differences between state and federal judges in this regard.

I don’t know/Not applicable
National survey of counsel in class action litigation Federal Judicial Center March 2003 

7

Part III. Impact of Amchem1 and Ortiz2

24. In Amchem and Ortiz, the U.S. Supreme Court announced requirements for approving proposed class action 

settlements and raised questions about including future claimants in class actions. Which of the following statements 

best describes any effect one or both of those cases may have had on your decisions about where to file the named 

case?

Please check all that apply:

 One or both cases provided the main reason we filed the named case in state court.

One or both cases were among a number of factors that led us to file the named case in state 

 court.

Neither case had an effect on our decisions about where to file the named case.

I don’t know/Not applicable

25. What effect, if any, do you think the Amchem and Ortiz cases had on the management of the named case? 

26. How do you think the Amchem and Ortiz cases have affected class action litigation generally in federal and state 

courts?

Part IV. Nature of Law Practice

27. Which of the following best describes your law practice?

Please check one:

 Sole practitioner

 Private firm of 2-10 lawyers

 

 Private firm of 11-49 lawyers

 Private firm of 50 or more lawyers

 Legal staff of a for-profit corporation or entity

 Legal staff of a nonprofit corporation or entity

 Government

 Other (specify) ___________________________

28. How many years have you practiced law?---------------------------------------------------------------------> _______ years

29. What type of clients do you generally represent?

Please check one:

 Primarily plaintiffs

 Primarily defendants

 Plaintiffs and defendants about equally

Primarily class action objectors 

 Other (specify): __________________________

30. In the past three years or so, how many class actions have you filed (including those filed as part of a team of 

plaintiffs' attorneys)?------------------------------------------------------------------------>approximately _____ class actions

 1 Amchem Products, Inc. v. Windsor, 521 U.S. 591 (1997). 2 Ortiz v. Fibreboard Corp, 527 U.S. 815 (1999).
National survey of counsel in class action litigation Federal Judicial Center March 2003 

8

31. Of these class action lawsuits, what percentage did you file in state court(s)?------------------>approximately _____ % 

32. What percentage of your work time has been devoted to civil litigation in state courts during the past five years*?--> 

approximately _____ % 

33. What percentage of your work time has been devoted to civil litigation in federal courts during the past five years*?

approximately _____ % 

34. What percentage of your work time has been devoted to class action litigation (federal or state courts) during the 

past five years*?------------------------------------------------------------------------------------------>approximately _____ % 

35. Comments. Please add any additional comments you may have about your experiences with filing or removal of

class actions. Please return the questionnaire by March 31, 2003

THANK YOU

Please return the questionnaire in the enclosed envelope addressed to the Federal Judicial Center (Class Action Counsel 

Survey), One Columbus Circle, N.E., Washington, D.C. 20002. If you have questions, please call Tom Willging at 202- 502-4049 or Bob Niemic at 202-502-4074.

 *

 During the time you have been in practice, if less than five years.
Questionnaire 2:

Plaintiff in Case Filed Originally in Federal Court
Blank page inserted for correct pagination

when printing double-sided copies.
Please return the questionnaire by March 31, 2003

National Survey of Class Action Counsel in Federal Class Actions Regarding Federal and State Class Action Practices 

Designed and administered by the Federal Judicial Center

For the Advisory Committee on Civil Rules of the

Judicial Conference of the United States

Origin and Purpose

The purpose of this survey is to examine the factors affecting attorney and client decisions to 

litigate class actions in state or federal courts. This questionnaire was designed by the Federal 

Judicial Center at the request of the federal judiciary’s Advisory Committee on Civil Rules. The 

Center is a judicial branch agency whose duties include conducting research on the operation of 

the courts. The Center is conducting this research to assist the Advisory Committee in its ongoing 

examination of class action rules.

Who Should Complete the Questionnaire?

Court records show that you represented plaintiff(s) in the case identified in the cover letter (the “named case”). Plaintiff(s) filed that case in federal court as a class action or raised the issue of 

class certification at a later stage of the litigation. If the named case was not filed originally in 

federal court, please check this box and return the cover letter and blank questionnaire in the 

enclosed envelope. We ask that an attorney who represented the plaintiff(s) in this case complete the questionnaire. 

We would like that attorney to be knowledgeable about key attorney decisions in the case. If that 

is someone other than you, please pass this questionnaire along to the appropriate attorney. If no

attorney with knowledge of key decisions is available, please check this box and return the 

cover letter and blank questionnaire in the enclosed envelope. We are sending a similar

questionnaire to attorneys for other parties in the litigation. 

Confidentiality

All information you provide that would permit anyone to identify the named case, the lawyers, or 

the parties is strictly confidential. Only a small number of staff within the Center’s Research 

Division will have access. Findings will be reported only in aggregate form. No individual litigant, 

attorney, or case will be identifiable. Center researchers will use the code number on the back of 

the questionnaire for administrative purposes only. Please check this box if you would like a summary of the survey results. Please return the questionnaire in the enclosed envelope addressed to the Federal Judicial 

Center (Class Action Counsel Survey), One Columbus Circle, N.E., Washington, D.C. 20002. 

If you have questions, please call Tom Willging at 202-502-4049 or Bob Niemic at 202-502- 4074.
National survey of counsel in class action litigation Federal Judicial Center March 2003 

2

Part I. Case Characteristics in the Named Case (See Cover Letter)

Please answer the questions in this Part with reference to the named case only. 

1. Which of the following best describes the proportion of claims based on federal and state law at the time the named 

case was filed?

Please check one: All claims were based on state law. 

The majority of claims were based on state law.

Claims were based on state and federal law about equally.

The majority of claims were based on federal law.

All claims were based on federal law.

I don’t know/Not applicable

2. How many members were in the class?---------------------------------------> approximately ________________ members

3. Members of the proposed class resided in how many state(s)?--------------------------------->approximately _____ states

4. What percentage of claimants resided in the state where the class action was filed?------------->approximately _____%

5. What percentage of claims-related transactions/events occurred in the state where class action was filed?---------------> 

approximately _____%

6. Did the federal district court transfer the named case to another federal district?

Please check one:

 Yes

 No

 I don’t know/Not applicable

7a. The outcome on class certification in the named case was:

Please check one: The trial court decided not to certify a class for trial or settlement.------------------>Proceed to question 8.

The trial court took no action on class certification.------------------------------------->Proceed to question 8.

The trial court certified a class for trial or settlement--------------------------------->Proceed to question 7b.

7b. The court certified a class:

Please check all that apply: For trial-------------------------------------------------------------------------------------------->Proceed to question 9.

For settlement purposes only, before the parties presented a settlement to the trial 

court.---------------------------------------------------------------------------------------------->Proceed to question 9.

For settlement purposes only, after or at the same time the parties presented a settlement 

to the trial court.--------------------------------------------------------------------------------->Proceed to question 9.

8. If no class was certified, what happened?

Please check all that apply: Parties proposed a classwide settlement, but the court did not approve any settlement.

The court dismissed the case for lack of jurisdiction. The court dismissed the case on the merits. Class representative(s) settled on an individual basis. 

Parties voluntarily dismissed the case.

The court granted summary judgment motion.

Cases were tried on an individual basis.

Other (specify) _________________________________________________________

I don’t know/Not applicable 
National survey of counsel in class action litigation Federal Judicial Center March 2003 

3

9. If a class was certified, whether for trial or for settlement purposes only, what was the outcome of the class claims?

Please check all that apply: Parties proposed a classwide settlement, and the court approved that settlement. Parties proposed a classwide settlement, and the court approved a revised settlement. Parties proposed a classwide settlement, but the court did not approve any settlement.

Class representative(s) settled their own claims on an individual basis.

 Trial on class claims resulted in a judgment for the class. Trial on class claims resulted in a judgment for the defendant(s). The court dismissed all claims on the merits. Other (specify) _________________________________________________________

I don’t know/Not applicable

10. Identify whether anyone filed an opposition or objection in the trial court to any of the following: 

Please check all that apply: Certification for trial as a class action.

Certification for settlement as a class action.

 Amount of attorney fees. 

 Terms of the proposed class settlement.

Class representatives’ settlement of their individual claims. 

 No opposition filed to any of the above.---------------------------------------------------->Proceed to question 12.

I don't know/Not applicable.------------------------------------------------------------------>Proceed to question 12.

11. Indicate the outcome in the trial court to each type of opposition or objection listed in the table below: 

Please place a check ( ) in the appropriate box for all that apply: Opposition or Objection Granted

Opposition or 

Objection 

Denied

Opposition or Objection WithdrawnNo Action 

Taken Not Applicable/ I Don't Know

Certification for trial as a 

class action

Certification for settlement as 

a class action

Amount of attorney fees

Terms of the proposed class 

settlement

12. Did any party or objector file an appeal (including interlocutory) of a trial court ruling in the named case? 

Please check one:

 Yes

No------------------------------------------------------------------------------------------------>Proceed to question 14.

 I don’t know/Not applicable------------------------------------------------------------------>Proceed to question 14.

13. What was the outcome of each type of appeal?

Please place a check ( ) in the appropriate box for all that apply: Appeal Affirmed Appeal 

Reversed

Appeal Remanded Appeal 

Withdrawn/

Dismissed

Appeal 

Settled

No 

Action 

Taken 

Not 

Applicable/ 

I Don't 

Know

Interlocutory appeal of class 

certification or denial of 

certification

Appeal of certification after final 

judgment

Approval of settlement

Disapproval of settlement

Appeal of judgment on the merits

Other appeal. Specify: ________________
National survey of counsel in class action litigation Federal Judicial Center March 2003 

4

14. When the litigation was concluded, whether by pretrial ruling, trial, settlement, or appeal, what was the total 

monetary recovery for the class? Exclude attorney fees and all expenses, monetary value of coupons, securities, or 

other non-monetary relief.

 Please check one:

 There was a monetary recovery.

How much was the total monetary recovery?---------------------------------------->approximately $_______ 

 How much of this amount was distributed to class members, if you know?----->approximately $_______ 

 There was no monetary recovery. 

 I don’t know/Not applicable

15. How much did the trial court award or approve for attorney fees and expenses?------------>approximately $________ 

 How much of that amount was for out-of-pocket attorney expenses (not including costs of settlement notices 

and costs of administering any settlement)?------------------------------------------------->approximately $_______ 

16. When the litigation was concluded, in addition to or in lieu of the monetary recovery, relief was distributed to class 

members in the form of:

Please check all that apply:

 There was no recovery.

 Transferable coupons, securities, or other instruments

 Nontransferable coupons or other instruments

 Injunctive or declaratory relief 

 Medical monitoring of potential injuries to class members

 Other (specify) ______________________________

 There was only a monetary recovery 

I don’t know/Not applicable

17. In addition to the named case, were other lawsuit(s) filed in state or federal court(s) dealing with the same subject matter and around the same time period (give or take a year or so)? 

 Please check one:

 Yes

No------------------------------------------------------------------------------------------------>Proceed to question 21.

 I don’t know/Not applicable------------------------------------------------------------------>Proceed to question 21.

18. Was a settlement of similar class claims proposed to any other court in any other case? 

Please check one:

 Yes

No------------------------------------------------------------------------------------------------>Proceed to question 21.

 I don’t know/Not applicable------------------------------------------------------------------>Proceed to question 21.

19. Were the other cases(s) referred to in question 17 or 18 originally filed in:

Please check one:

 Federal court

State court

Both Federal and State court

 I don’t know/Not applicable

20. What were the outcomes of those other cases?

Please check one:

 Same as the outcome in the named case The outcome in the other case(s) differed from the named case in the following ways (specify): 

 _______________________________________________________________________________

 I don’t know/Not applicable
National survey of counsel in class action litigation Federal Judicial Center March 2003 

5

Part II. Reasons for selecting a federal forum

21. Please check each box that indicates a reason you filed the named case in the federal district that you chose instead 

of filing the action in state court:

Applicable Law

 All or most claims were based on federal law.

At least one claim was based on federal law.

At least one claim could only be brought in federal court.

 At least one claim was based on the laws of many states.

 Federal substantive law was more favorable to our claims than state substantive law. Convenience

 My co-counsel and I were more familiar with the procedures in federal court.

 The location of the federal court was more convenient for us, our clients, or witnesses in the named case.

Rules

 Federal discovery rules were more favorable to our case. Federal expert evidence (Daubert/Frye) rules were more favorable to our case.

Federal evidentiary rules were more favorable to our case.

 Federal class action rules in general imposed less stringent requirements for certifying a class action. 

 Federal class action rules imposed less stringent requirements for notifying class members. 

Interlocutory appeal was less likely to be available in federal court.

Judicial Receptiveness

The federal court in the district you chose was generally more receptive to motions to certify a class.

The federal court in the district you chose was generally more receptive to motions to approve a class 

 settlement.

The federal court in the district you chose was generally more receptive to the claims on the merits. 

The federal court in the district you chose was able to more expeditiously resolve this class action. 

 The federal court in the district you chose had more resources available to handle this class action.

Costs and Fees

 The cost of litigation for my client would be lower in federal court.

 The federal court would be more likely to act favorably on our request for attorney fees.

Strategy

 We wanted to be included in a federal multidistrict litigation transfer.

 The federal court would be more likely to appoint my client and our law firm to represent the class.

 We wanted to avoid having similar claims in a number of state courts. 

Other 

 I generally prefer to litigate in federal court.

The defendant was likely to remove the action to federal court.

 A jury award in federal court would likely be higher. Please specify any other reasons why you filed this action in federal court. ________________________________________________________________________________________

________________________________________________________________________________________
National survey of counsel in class action litigation Federal Judicial Center March 2003 

6

22. To achieve the most favorable outcome for your client, you may have weighed certain party characteristics in your 

decision to file the named case in the federal court you chose rather than in state court. For each possible source of 

advantage or disadvantage listed below, please circle the appropriate number for the degree of advantage you 

expected at the time you chose to file the named case in federal court. By filing in this federal district, we expected:

Source of advantage/disadvantage

Strong 

advantage 

for our 

client 

Advantage 

for our 

client 

No 

advantage or 

disadvantage 

for our client

Disadvantage 

for our client

Strong 

disadvantage 

for our client

Not 

Applicable/ 

I Don't

Know

Defendant’s out-of-state residence 1 2 3 4 5 N/A

Defendant’s residence in another part of the state 1 2 3 4 5 N/A

Local residence(s) of class representative(s) 1 2 3 4 5 N/A

Gender, ethnicity, race, religion or 

socioeconomic status of a party or attorney on 

the plaintiff’s side

1 2 3 4 5 N/A

Gender, ethnicity, race, religion or 

socioeconomic status of a party or attorney on 

the defendant’s side.

1 2 3 4 5 N/A

Foreign national status of a class representative 

or class as a whole

1 2 3 4 5 N/A

Foreign national status of a defendant 1 2 3 4 5 N/A

Incorporated status of a class representative 1 2 3 4 5 N/A

Incorporated status of a defendant 1 2 3 4 5 N/A

Type of business conducted by a class 

representative or class (specify) ___________________________________

1 2 3 4 5 N/A

Type of business conducted by a defendant 

(specify) ___________________________

1 2 3 4 5 N/A

Class representative’s or class’s reputation in the 

community

1 2 3 4 5 N/A

Defendant’s reputation in the community 1 2 3 4 5 N/A

Other party characteristic (specify) ___________________________________1 2 3 4 5 N/A

Other source(s) of advantage or disadvantage 

(specify) __________________________________

__________________________________

1 2 3 4 5 N/A

23. When you filed the named case, which of the following statements best describes your impression about any 

predisposition of state or federal judges toward interests like your clients’? Please answer the question with respect 

to the state court judges and federal court judges most likely to hear the named case at the trial level.

 Please check one:

 Federal judges were more likely than state judges to rule in favor of interests like those of my clients.

 State judges were more likely than federal judges to rule in favor of interests like those of my clients.

 We perceived no differences between state and federal judges in this regard.

I don’t know/Not applicable
National survey of counsel in class action litigation Federal Judicial Center March 2003 

7

Part III. Impact of Amchem1 and Ortiz2

24. In Amchem and Ortiz, the U.S. Supreme Court announced requirements for approving proposed class action 

settlements and raised questions about including future claimants in class actions. Which of the following statements 

best describes any effect one or both of those cases may have had on your decisions about where to file the named 

case?

Please check all that apply:

 One or both cases provided the main reason we filed the named case in federal court.

One or both cases were among a number of factors that led us to file the named case in federal

 court.

Neither case had an effect on our decisions about where to file the named case. I don’t know/Not applicable

25. What effect, if any, do you think the Amchem and Ortiz cases had on the management of the named case? 

26. How do you think the Amchem and Ortiz cases have affected class action litigation generally in federal and state 

courts?

Part IV. Nature of Law Practice

27. Which of the following best describes your law practice?

Please check one:

 Sole practitioner

 Private firm of 2-10 lawyers

 

 Private firm of 11-49 lawyers

 Private firm of 50 or more lawyers

 Legal staff of a for-profit corporation or entity

 Legal staff of a nonprofit corporation or entity

 Government

 Other (specify) ___________________________

28. How many years have you practiced law?---------------------------------------------------------------------> _______ years

29. What type of clients do you generally represent?

Please check one:

 Primarily plaintiffs

 Primarily defendants

 Plaintiffs and defendants about equally

Primarily class action objectors 

 1 Amchem Products, Inc. v. Windsor, 521 U.S. 591 (1997). 2 Ortiz v. Fibreboard Corp, 527 U.S. 815 (1999).
National survey of counsel in class action litigation Federal Judicial Center March 2003 

8

 Other (specify): __________________________

30. In the past three years or so, how many class actions have you filed (including those filed as part of a team of 

plaintiffs' attorneys)?------------------------------------------------------------------------>approximately _____ class actions

31. Of these class action lawsuits, what percentage did you file in state court(s)?------------------>approximately _____ % 

32. What percentage of your work time has been devoted to civil litigation in state courts during the past five years*?--> 

approximately _____ % 

33. What percentage of your work time has been devoted to civil litigation in federal courts during the past five years*?

approximately _____ % 

34. What percentage of your work time has been devoted to class action litigation (federal or state courts) during the 

past five years*?------------------------------------------------------------------------------------------>approximately _____ % 

35. Comments. Please add any additional comments you may have about your experiences with filing or removal of

class actions. Please return the questionnaire by March 31, 2003

THANK YOU

Please return the questionnaire in the enclosed envelope addressed to the Federal Judicial Center (Class Action Counsel 

Survey), One Columbus Circle, N.E., Washington, D.C. 20002. If you have questions, please call Tom Willging at 202- 502-4049 or Bob Niemic at 202-502-4074.

 *

 During the time you have been in practice, if less than five years.
Questionnaire 3:

Defendant in Case Originally Filed

in State Court and Removed to Federal Court
Blank page inserted for correct pagination

when printing double-sided copies.
Please return the questionnaire by March 31, 2003

National Survey of Class Action Counsel in Federal Class Actions Regarding

Federal and State Class Action Practices 

Designed and administered by the Federal Judicial Center

For the Advisory Committee on Civil Rules of the

Judicial Conference of the United States

Origin and Purpose

The purpose of this survey is to examine the factors affecting attorney and client decisions to 

litigate class actions in state or federal courts. This questionnaire was designed by the Federal 

Judicial Center at the request of the federal judiciary’s Advisory Committee on Civil Rules. The 

Center is a judicial-branch agency whose duties include conducting research on the operation of 

the courts. The Center is conducting this research to assist the Advisory Committee in its ongoing 

examination of class action rules.

Who Should Complete the Questionnaire?

Court records show that you represented defendant(s) in the case identified in the cover letter (the “named case”). Plaintiff(s) filed that case in state court as a class action or raised the issue of 

class certification at a later stage of the litigation. Defendant(s) removed the action to federal 

court where it was either litigated or remanded to state court. If the named case was not filed in 

state court and removed to federal court, please check this box and return the cover letter 

and blank questionnaire in the enclosed envelope. We ask that an attorney who represented the defendant(s) in this case complete the questionnaire. 

We would like that attorney to be knowledgeable about key attorney decisions in the case. If that 

is someone other than you, please pass this questionnaire along to the appropriate attorney. If no

attorney with knowledge of key decisions is available, please check this box and return the 

cover letter and blank questionnaire in the enclosed envelope. We are sending a similar

questionnaire to attorneys for other parties in the litigation. 

Confidentiality

All information you provide that would permit anyone to identify the named case, the lawyers, or 

the parties is strictly confidential. Only a small number of staff within the Center’s Research 

Division will have access. Findings will be reported only in aggregate form. No individual 

litigant, attorney, or case will be identifiable. Center researchers will use the code number on the 

back of the questionnaire for administrative purposes only. Please check this box if you would like a summary of the survey results. Please return the questionnaire in the enclosed envelope addressed to the Federal Judicial 

Center (Class Action Counsel Survey), One Columbus Circle, N.E., Washington, D.C. 

20002. If you have questions, please call Tom Willging at 202-502-4049 or Bob Niemic at 

202-502-4074.
National survey of counsel in class action litigation Federal Judicial Center March 2003

2

Part I. Case Characteristics in the Named Case (See Cover Letter)

Please answer the questions in this Part with reference to the named case only. 

1. Which of the following best describes the proportion of claims based on federal and state law at the time the named 

case was filed?

Please check one: All claims were based on state law. 

The majority of claims were based on state law.

Claims were based on state and federal law about equally.

The majority of claims were based on federal law.

All claims were based on federal law.

I don’t know/Not applicable

2. How many members were in the class?-------------------------------------> approximately ________________ members

3. Members of the proposed class resided in how many state(s)?-------------------------------->approximately _____ states 4. What percentage of claimants resided in the state where the class action was filed?------------>approximately _____%

5. What percentage of claims-related transactions/events occurred in the state where class action was filed? -------------> 

approximately _____%

6. Did the federal district court remand the named case to state court?

Please check one:

 Yes------------------------>Answer questions 7-20 with respect to case events in the state court after remand.

 No------------------------------------------->Answer questions 7-20 with respect to case events in federal court.

 I don’t know/Not applicable.------------>Answer questions 7-20 with respect to case events in federal court. 7a. The outcome on class certification in the named case was:

Please check one: The trial court decided not to certify a class for trial or settlement.--------------------->Proceed to question 8.

The trial court took no action on class certification.--------------------------------------->Proceed to question 8.

The trial court certified a class for trial or settlement----------------------------------->Proceed to question 7b.

7b. The court certified a class:

Please check all that apply: For trial------------------------------------------------------------------------------------------>Proceed to question 9.

For settlement purposes only, before the parties presented a settlement to the trial 

court.-------------------------------------------------------------------------------------------->Proceed to question 9.

For settlement purposes only, after or at the same time the parties presented a settlement 

to the trial court.------------------------------------------------------------------------------->Proceed to question 9.

8. If no class was certified, what happened?

Please check all that apply: Parties proposed a classwide settlement, but the court did not approve any settlement.

The court dismissed the case for lack of jurisdiction. The court dismissed the case on the merits. Class representative(s) settled on an individual basis. 

Parties voluntarily dismissed the case.

The court granted summary judgment motion.

Cases were tried on an individual basis.

Other (specify) _________________________________________________________

I don’t know/Not applicable 
National survey of counsel in class action litigation Federal Judicial Center March 2003

3

9. If a class was certified, whether for trial or for settlement purposes only, what was the outcome of the class claims?

Please check all that apply: Parties proposed a classwide settlement, and the court approved that settlement. Parties proposed a classwide settlement, and the court approved a revised settlement. Parties proposed a classwide settlement, but the court did not approve any settlement.

Class representative(s) settled their own claims on an individual basis.

 Trial on class claims resulted in a judgment for the class. Trial on class claims resulted in a judgment for the defendant(s). The court dismissed all claims on the merits. Other (specify) _________________________________________________________

I don’t know/Not applicable

10. Identify whether anyone filed an opposition or objection in the trial court to any of the following: 

Please check all that apply: Certification for trial as a class action.

Certification for settlement as a class action.

Amount of attorney fees. 

 Terms of the proposed class settlement.

Class representatives’ settlement of their individual claims. 

 No opposition filed to certification for settlement or to settlement terms.------------>Proceed to question 12.

I don't know/Not applicable.---------------------------------------------------------------->Proceed to question 12.

11. Indicate the outcome in the trial court to each type of opposition or objection listed in the table below: 

Please place a check ( ) in the appropriate box for all that apply: Opposition or Objection Granted

Opposition or 

Objection 

Denied

Opposition or Objection WithdrawnNo Action 

Taken Not Applicable/ I Don't Know

Certification for trial as a 

class action

Certification for settlement as 

a class action

Amount of attorney fees

Terms of the proposed class 

settlement

12. Did any party or objector file an appeal (including interlocutory) of a court ruling in the named case? 

Please check one:

 Yes

No----------------------------------------------------------------------------------------------->Proceed to question 

14.

 I don’t know/Not applicable---------------------------------------------------------------->Proceed to question 14.

13. What was the outcome of each type of appeal?

Please place a check ( ) in the appropriate box for all that apply: Appeal Affirmed Appeal 

Reversed

Appeal Remanded Appeal 

Withdrawn/

Dismissed

Appeal 

Settled

No 

Action 

Taken 

Not 

Applicable/ 

I Don't 

Know

Interlocutory appeal of class 

certification or denial of 

certification

Appeal of certification after final 

judgment

Approval of settlement

Disapproval of settlement

Appeal of judgment on the merits

Other appeal. Specify: ________________
National survey of counsel in class action litigation Federal Judicial Center March 2003

4

14. When the litigation was concluded, whether by pretrial ruling, trial, settlement, or appeal, what was the total 

monetary recovery for the class? Exclude attorney fees and all expenses, monetary value of coupons, securities, or 

other non-monetary relief.

 Please check one:

 There was a monetary recovery.

How much was the total monetary recovery?-------------------------------------->approximately $_______ 

 How much of this amount was distributed to class members, if you know?--->approximately $_______ 

 There was no monetary recovery. 

 I don’t know/Not applicable

15. How much did the trial court award or approve for attorney fees and expenses?------------>approximately $ _______ 

 How much of that amount was for out-of-pocket attorney expenses (not including costs of settlement notices 

and costs of administering any settlement)?------------------------------------------------>approximately $_______

16. When the litigation was concluded, in addition to or in lieu of the monetary recovery, relief was distributed to class 

members in the form of:

Please check all that apply:

 There was no recovery.

 Transferable coupons, securities, or other instruments

 Nontransferable coupons or other instruments

 Injunctive or declaratory relief 

 Medical monitoring of potential injuries to class members

 Other (specify) ______________________________

 There was only a monetary recovery 

I don’t know/Not applicable

17. In addition to the named case, were other lawsuit(s) filed in state or federal court(s) dealing with the same subject matter and around the same time period (give or take a year or so)? 

 Please check one:

 Yes

No----------------------------------------------------------------------------------------------->Proceed to question 

21.

 I don’t know/Not applicable---------------------------------------------------------------->Proceed to question 21.

18. Was a settlement of similar class claims proposed to any other court in any other case? 

Please check one:

 Yes

No----------------------------------------------------------------------------------------------->Proceed to question 

21.

 I don’t know/Not applicable---------------------------------------------------------------->Proceed to question 21.

19. Were the other cases(s) referred to in question 17 or 18 originally filed in:

Please check one:

 Federal court

State court

Both Federal and State court

 I don’t know/Not applicable

20. What were the outcomes of those other cases?

Please check one:

 Same as the outcome in the named case The outcome in the other case(s) differed from the named case in the following ways (specify): 

 _______________________________________________________________________________

 I don’t know/Not applicable
National survey of counsel in class action litigation Federal Judicial Center March 2003

5

Part II. Reasons for selecting a federal forum

21. Please check each box that indicates a reason you removed the named case from state to federal court: Applicable Law

At least one claim was based on federal law.

At least one claim called for defenses based on federal law.

 At least one claim was based on the laws of many states.

 Federal substantive law was more favorable to our defense than state substantive law. Convenience

 My client prefers to litigate cases in federal court.

 My co-counsel and I were more familiar with the procedures in federal court.

 The location of the federal court is more convenient for us, our clients, or witnesses in the named case.

Rules

 Federal discovery rules were more favorable to our case. Federal expert evidence (Daubert/Frye) rules were more favorable to our case.

Federal evidentiary rules were more favorable to our case.

 Federal class action rules in general imposed more stringent requirements for certifying a class action.

 Federal class action rules imposed more stringent requirements for notifying class members.

Interlocutory appeal of a certification order was more likely to be available in federal court.

Judicial Receptiveness

The federal court was generally less receptive to motions to certify a class.

The federal court was generally more receptive to motions to approve a class settlement.

The federal court was generally more receptive to the claims on the merits. 

The federal court was able to more expeditiously resolve this class action. 

 The federal court had more resources available to handle this class action.

Costs and Fees

 The cost of litigation for my client would be lower in federal court.

Strategy

 We wanted to centralize cases into a federal multidistrict litigation proceeding.

 We wanted to avoid having similar claims in a number of state courts. 

Other 

I generally prefer to litigate in federal court.

 A jury award in federal court would likely be lower. Please specify any other reasons why you removed this case to federal court. ________________________________________________________________________________________

________________________________________________________________________________________
National survey of counsel in class action litigation Federal Judicial Center March 2003

6

22. To achieve the most favorable outcome for your client, you may have weighed certain party characteristics in your 

decision to remove the named case to federal court. For each possible source of advantage or disadvantage listed 

below, please circle the appropriate number for the degree of advantage you expected at the time you chose to 

remove the named case to federal court. By removing to federal court, we expected:

Source of advantage/disadvantage

Strong 

advantage 

for our 

client 

Advantage 

for our 

client 

No 

advantage or 

disadvantage 

for our client

Disadvantage 

for our client

Strong 

disadvantage 

for our client

Not 

Applicable/ 

I Don't 

Know

Defendant’s out-of-state residence 1 2 3 4 5 N/A

Defendant’s residence in another part of the state 1 2 3 4 5 N/A

Local residence(s) of class representative(s) 1 2 3 4 5 N/A

Gender, ethnicity, race, religion or 

socioeconomic status of a party or attorney on 

the plaintiff’s side

1 2 3 4 5 N/A

Gender, ethnicity, race, religion or 

socioeconomic status of a party or attorney on 

the defendant’s side.

1 2 3 4 5 N/A

Foreign national status of a class representative 

or class as a whole

1 2 3 4 5 N/A

Foreign national status of a defendant 1 2 3 4 5 N/A

Incorporated status of a class representative 1 2 3 4 5 N/A

Incorporated status of a defendant 1 2 3 4 5 N/A

Type of business conducted by a class 

representative or class (specify) ___________________________________

1 2 3 4 5 N/A

Type of business conducted by a defendant 

(specify) ___________________________

1 2 3 4 5 N/A

Class representative’s or class’s reputation in the 

community

1 2 3 4 5 N/A

Defendant’s reputation in the community 1 2 3 4 5 N/A

Other party characteristic (specify) ___________________________________1 2 3 4 5 N/A

Other source(s) of advantage or disadvantage 

(specify) __________________________________

__________________________________

1 2 3 4 5 N/A

23. When you removed the named case, which of the following statements best describes your impression about any 

predisposition of state or federal judges toward interests like your clients’? Please answer the question with respect 

to the state court judges and federal court judges most likely to hear the named case at the trial level.

 Please check one:

 Federal judges were more likely than state judges to rule in favor of interests like those of my clients.

 State judges were more likely than federal judges to rule in favor of interests like those of my clients.

 We perceived no differences between state and federal judges in this regard.

I don’t know/Not applicable
National survey of counsel in class action litigation Federal Judicial Center March 2003

7

Part III. Impact of Amchem1 and Ortiz2

24. In Amchem and Ortiz, the U.S. Supreme Court announced requirements for approving proposed class action 

settlements and raised questions about including future claimants in class actions. Which of the following 

statements best describes any effect one or both of those cases may have had on your decisions about whether to 

remove the named case?

Please check all that apply:

 One or both cases provided the main reason we removed the named case to federal court.

One or both cases were among a number of factors that led us to remove the named case 

 to federal court

Neither case had an effect on our decisions about whether to remove the named case.

I don’t know/Not applicable

25. What effect, if any, do you think the Amchem and Ortiz cases had on the management of the named case? 

26. How do you think the Amchem and Ortiz cases have affected class action litigation generally in federal and state 

courts?

Part IV. Nature of Law Practice

27. Which of the following best describes your law practice?

Please check one:

 Sole practitioner

 Private firm of 2-10 lawyers

 

 Private firm of 11-49 lawyers

 Private firm of 50 or more lawyers

 Legal staff of a for-profit corporation or entity

 Legal staff of a nonprofit corporation or entity

 Government

 Other (specify) ___________________________

28. How many years have you practiced law?---------------------------------------------------------------------> _______ years

29. What type of clients do you generally represent?

Please check one:

 Primarily plaintiffs

 Primarily defendants

 Plaintiffs and defendants about equally

Primarily class action objectors 

 Other (specify): __________________________

30. In the past three years or so, how many class actions have you filed or defended (including those filed as part of a 

team of plaintiffs' attorneys)?------------------------------------------------------------>approximately _____ class actions

 1 Amchem Products, Inc. v. Windsor, 521 U.S. 591 (1997). 2 Ortiz v. Fibreboard Corp, 527 U.S. 815 (1999).
National survey of counsel in class action litigation Federal Judicial Center March 2003

8

31. Of these class action lawsuits, what percentage did you file or defend in state court(s)?----->approximately _____ % 

32. What percentage of your work time has been devoted to civil litigation in state courts during the past five years*?-- > approximately _____ %

33. What percentage of your work time has been devoted to civil litigation in federal courts during the past five years*?

approximately _____ % 

34. What percentage of your work time has been devoted to class action litigation (federal or state courts) during the 

past five years*?----------------------------------------------------------------------------------------->approximately _____ %

35. Comments. Please add any additional comments you may have about your experiences with filing, defending or removing class actions. Please return the questionnaire by March 31, 2003

THANK YOU

Please return the questionnaire in the enclosed envelope addressed to the Federal Judicial Center (Class Action Counsel 

Survey), One Columbus Circle, N.E., Washington, D.C. 20002. If you have questions, please call Tom Willging at 

202-502-4049 or Bob Niemic at 202-502-4074.

 *

 During the time you have been in practice, if less than five years.
Questionnaire 4:

Defendant in Case Filed Originally

in Federal Court
Blank page inserted for correct pagination

when printing double-sided copies.
Please return the questionnaire by March 31, 2003

National Survey of Class Action Counsel in Federal Class Actions Regarding

Federal and State Class Action Practices 

Designed and administered by the Federal Judicial Center

For the Advisory Committee on Civil Rules of the

Judicial Conference of the United States

Origin and Purpose

The purpose of this survey is to examine the factors affecting attorney and client decisions to 

litigate class actions in state or federal courts. This questionnaire was designed by the Federal 

Judicial Center at the request of the federal judiciary’s Advisory Committee on Civil Rules. The 

Center is a judicial branch agency whose duties include conducting research on the operation of 

the courts. The Center is conducting this research to assist the Advisory Committee in its ongoing 

examination of class action rules.

Who Should Complete the Questionnaire?

Court records show that you represented defendant(s) in the case identified in the cover letter (the “named case”). Plaintiff(s) filed that case in federal court as a class action or raised the issue of 

class certification at a later stage of the litigation. If the named case was not filed originally in 

federal court, please check this box and return the cover letter and blank questionnaire in the 

enclosed envelope. We ask that an attorney who represented the defendant(s) in this case complete the questionnaire. 

We would like that attorney to be knowledgeable about key attorney decisions in the case. If that 

is someone other than you, please pass this questionnaire along to the appropriate attorney. If no

attorney with knowledge of key decisions is available, please check this box and return the 

cover letter and blank questionnaire in the enclosed envelope. We are sending a similar

questionnaire to attorneys for other parties in the litigation. 

Confidentiality

All information you provide that would permit anyone to identify the named case, the lawyers, or 

the parties is strictly confidential. Only a small number of staff within the Center’s Research 

Division will have access. Findings will be reported only in aggregate form. No individual 

litigant, attorney, or case will be identifiable. Center researchers will use the code number on the 

back of the questionnaire for administrative purposes only. Please check this box if you would like a summary of the survey results. Please return the questionnaire in the enclosed envelope addressed to the Federal Judicial 

Center (Class Action Counsel Survey), One Columbus Circle, N.E., Washington, D.C. 

20002. If you have questions, please call Tom Willging at 202-502-4049 or Bob Niemic at 

202-502-4074.
National survey of counsel in class action litigation Federal Judicial Center March 2003

2

Part I. Case Characteristics in the Named Case (See Cover Letter)

Please answer the questions in this Part with reference to the named case only. 

1. Which of the following best describes the proportion of claims based on federal and state law at the time the named 

case was filed?

Please check one: All claims were based on state law. 

The majority of claims were based on state law.

Claims were based on state and federal law about equally.

The majority of claims were based on federal law.

All claims were based on federal law.

I don’t know/Not applicable

2. How many members were in the class?-------------------------------------> approximately ________________ members

3. Members of the proposed class resided in how many state(s)?-------------------------------->approximately _____ states 4. What percentage of claimants resided in the state where the class action was filed?------------>approximately _____%

5. What percentage of claims-related transactions/events occurred in the state where class action was filed? -------------> 

approximately _____%

6. Did the federal district court transfer the named case to another federal court?

 Please check one:

 Yes

 No

 I don’t know/Not applicable

7a. The outcome on class certification in the named case was:

Please check one: The trial court decided not to certify a class for trial or settlement.--------------------->Proceed to question 8.

The trial court took no action on class certification.--------------------------------------->Proceed to question 8.

The trial court certified a class for trial or settlement----------------------------------->Proceed to question 7b.

7b. The court certified a class:

Please check all that apply: For trial------------------------------------------------------------------------------------------>Proceed to question 9.

For settlement purposes only, before the parties presented a settlement to the trial 

court.-------------------------------------------------------------------------------------------->Proceed to question 9.

For settlement purposes only, after or at the same time the parties presented a settlement 

to the trial court.------------------------------------------------------------------------------->Proceed to question 9.

8. If no class was certified, what happened?

Please check all that apply: Parties proposed a classwide settlement, but the court did not approve any settlement.

The court dismissed the case for lack of jurisdiction. The court dismissed the case on the merits. Class representative(s) settled on an individual basis. 

Parties voluntarily dismissed the case.

The court granted summary judgment motion.

Cases were tried on an individual basis.

Other (specify) _________________________________________________________

I don’t know/Not applicable 
National survey of counsel in class action litigation Federal Judicial Center March 2003

3

9. If a class was certified, whether for trial or for settlement purposes only, what was the outcome of the class claims?

Please check all that apply: Parties proposed a classwide settlement, and the court approved that settlement. Parties proposed a classwide settlement, and the court approved a revised settlement. Parties proposed a classwide settlement, but the court did not approve any settlement.

Class representative(s) settled their own claims on an individual basis.

 Trial on class claims resulted in a judgment for the class. Trial on class claims resulted in a judgment for the defendant(s). The court dismissed all claims on the merits. Other (specify) _________________________________________________________

I don’t know/Not applicable

10. Identify whether anyone filed an opposition or objection in the trial court to any of the following: 

Please check all that apply: Certification for trial as a class action.

Certification for settlement as a class action.

Amount of attorney fees. 

 Terms of the proposed class settlement.

Class representatives’ settlement of their individual claims. 

 No opposition filed to certification for settlement or to settlement terms.------------>Proceed to question 12.

I don't know/Not applicable.---------------------------------------------------------------->Proceed to question 12.

11. Indicate the outcome in the trial court to each type of opposition or objection listed in the table below: 

Please place a check ( ) in the appropriate box for all that apply: Opposition or Objection Granted

Opposition or 

Objection 

Denied

Opposition or Objection WithdrawnNo Action 

Taken Not Applicable/ I Don't Know

Certification for trial as a 

class action

Certification for settlement as 

a class action

Amount of attorney fees

Terms of the proposed class 

settlement

12. Did any party or objector file an appeal (including interlocutory) of a court ruling in the named case? 

Please check one:

 Yes

No----------------------------------------------------------------------------------------------->Proceed to question 

14.

 I don’t know/Not applicable---------------------------------------------------------------->Proceed to question 14.

13. What was the outcome of each type of appeal?

Please place a check ( ) in the appropriate box for all that apply: Appeal Affirmed Appeal 

Reversed

Appeal Remanded Appeal 

Withdrawn/

Dismissed

Appeal 

Settled

No 

Action 

Taken 

Not 

Applicable/ 

I Don't 

Know

Interlocutory appeal of class 

certification or denial of 

certification

Appeal of certification after final 

judgment

Approval of settlement

Disapproval of settlement

Appeal of judgment on the merits

Other appeal. Specify: ________________
National survey of counsel in class action litigation Federal Judicial Center March 2003

4

14. When the litigation was concluded, whether by pretrial ruling, trial, settlement, or appeal, what was the total 

monetary recovery for the class? Exclude attorney fees and all expenses, monetary value of coupons, securities, or 

other non-monetary relief.

 Please check one:

 There was a monetary recovery.

How much was the total monetary recovery?-------------------------------------->approximately $_______ 

 How much of this amount was distributed to class members, if you know?--->approximately $_______ 

 There was no monetary recovery. 

 I don’t know/Not applicable

15. How much did the trial court award or approve for attorney fees and expenses?----------->approximately $ _______ 

 How much of that amount was for out-of-pocket attorney expenses (not including costs of settlement notices 

and costs of administering any settlement)?------------------------------------------------>approximately $_______

16. When the litigation was concluded, in addition to or in lieu of the monetary recovery, relief was distributed to class 

members in the form of:

Please check all that apply: There was no recovery.

 Transferable coupons, securities, or other instruments

 Nontransferable coupons or other instruments

 Injunctive or declaratory relief 

 Medical monitoring of potential injuries to class members

 Other (specify) ______________________________

 There was only a monetary recovery 

I don’t know/Not applicable

17. In addition to the named case, were other lawsuit(s) filed in state or federal court(s) dealing with the same subject matter and around the same time period (give or take a year or so)? 

 Please check one:

 Yes

No----------------------------------------------------------------------------------------------->Proceed to question 

21.

 I don’t know/Not applicable---------------------------------------------------------------->Proceed to question 21.

18. Was a settlement of similar class claims proposed to any other court in any other case? 

Please check one:

 Yes

No----------------------------------------------------------------------------------------------->Proceed to question 

21.

 I don’t know/Not applicable---------------------------------------------------------------->Proceed to question 21.

19. Were the other cases(s) referred to in question 17 or 18 originally filed in:

Please check one:

 Federal court

State court

Both Federal and State court

 I don’t know/Not applicable

20. What were the outcomes of those other cases?

Please check one:

 Same as the outcome in the named case The outcome in the other case(s) differed from the named case in the following ways (specify): 

 _______________________________________________________________________________

 I don’t know/Not applicable
National survey of counsel in class action litigation Federal Judicial Center March 2003

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Part II. Reasons for preferring a federal forum

21. This question is hypothetical: assume – contrary to fact – that plaintiff(s) had filed the named case in state court. 

 Would you have removed this action to federal court?

Please check one:

 Yes

 No

I don’t know/Not applicable

 Please check each box that indicates a reason that would have influenced your decision to remove the case to 

federal court.

Applicable Law

At least one claim was based on federal law.

At least one claim called for defenses based on federal law.

At least one claim was based on the laws of many states. Federal substantive law was more favorable to our defense than state substantive law. Convenience

 My client prefers to litigate cases in federal court.

 My co-counsel and I were more familiar with the procedures in federal court.

 The location of the federal court is more convenient for us, our clients, or witnesses in the named case.

Rules

 Federal discovery rules were more favorable to our case. Federal expert evidence (Daubert/Frye) rules were more favorable to our case.

Federal evidentiary rules were more favorable to our case.

 Federal class action rules in general imposed more stringent requirements for certifying a class action.

 Federal class action rules imposed more stringent requirements for notifying class members.

Interlocutory appeal of a certification order was more likely to be available in federal court.

Judicial Receptiveness

The federal court was generally less receptive to motions to certify a class.

The federal court was generally more receptive to motions to approve a class settlement.

The federal court was generally more receptive to the claims on the merits. 

The federal court was able to more expeditiously resolve this class action. 

 The federal court had more resources available to handle this class action.

Costs and Fees

 The cost of litigation for my client would be lower in federal court.

Strategy

 We wanted to centralize cases into a federal multidistrict litigation proceeding.

 We wanted to avoid having similar claims in a number of state courts. 

Other 

I generally prefer to litigate in federal court.

 A jury award in federal court would likely be lower. Please specify any other reasons why you might have removed this case to federal court. ________________________________________________________________________________________

________________________________________________________________________________________
National survey of counsel in class action litigation Federal Judicial Center March 2003

6

22. Continuing the hypothetical, assume that plaintiff(s) had filed the named case in state court and that you were 

considering whether to remove the named case to federal court. You may have had to weigh certain party 

characteristics in considering whether to remove to federal court. For each possible source of advantage or 

disadvantage listed below, please circle the appropriate number for the degree of advantage you would have

expected. In considering a motion to remove to federal court, we would have expected:

Source of advantage/disadvantage

Strong 

advantage 

for our 

client 

Advantage 

for our 

client 

No 

advantage or 

disadvantage 

for our client

Disadvantage 

for our client

Strong 

disadvantage 

for our client

Not 

Applicable/ 

I Don't 

Know

Defendant’s out-of-state residence 1 2 3 4 5 N/A

Defendant’s residence in another part of the state 1 2 3 4 5 N/A

Local residence(s) of class representative(s) 1 2 3 4 5 N/A

Gender, ethnicity, race, religion or 

socioeconomic status of a party or attorney on 

the plaintiff’s side

1 2 3 4 5 N/A

Gender, ethnicity, race, religion or 

socioeconomic status of a party or attorney on 

the defendant’s side.

1 2 3 4 5 N/A

Foreign national status of a class representative 

or class as a whole

1 2 3 4 5 N/A

Foreign national status of a defendant 1 2 3 4 5 N/A

Incorporated status of a class representative 1 2 3 4 5 N/A

Incorporated status of a defendant 1 2 3 4 5 N/A

Type of business conducted by a class 

representative or class (specify) ___________________________________

1 2 3 4 5 N/A

Type of business conducted by a defendant 

(specify) ___________________________

1 2 3 4 5 N/A

Class representative’s or class’s reputation in the 

community

1 2 3 4 5 N/A

Defendant’s reputation in the community 1 2 3 4 5 N/A

Other party characteristic (specify) ___________________________________1 2 3 4 5 N/A

Other source(s) of advantage or disadvantage 

(specify) __________________________________

__________________________________

1 2 3 4 5 N/A
National survey of counsel in class action litigation Federal Judicial Center March 2003

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Part III. Impact of Amchem1 and Ortiz2

23. In Amchem and Ortiz, the U.S. Supreme Court announced requirements for approving proposed class action 

settlements and raised questions about including future claimants in class actions. Which of the following 

statements best describes any effect one or both of those cases may have had on your decisions about whether to 

remove class actions during the past three years?

Please check all that apply:

 We did not consider removing any class actions during the past three years.

One or both cases provided the main reason we removed one or more class actions to federal court.

One or both cases were among a number of factors that led us to remove one or more class actions 

 to federal court

Neither case had an effect on our decisions about whether to remove class actions.

I don’t know/Not applicable

24. What effect, if any, do you think the Amchem and Ortiz cases had on the management of the named case? 

25. How do you think the Amchem and Ortiz cases have affected class action litigation generally in federal and state 

courts?

Part IV. Nature of Law Practice

26. Which of the following best describes your law practice?

Please check one:

 Sole practitioner

 Private firm of 2-10 lawyers

 

 Private firm of 11-49 lawyers

 Private firm of 50 or more lawyers

 Legal staff of a for-profit corporation or entity

 Legal staff of a nonprofit corporation or entity

 Government

 Other (specify) ___________________________

27. How many years have you practiced law?---------------------------------------------------------------------> _______ years

28. What type of clients do you generally represent?

Please check one:

 Primarily plaintiffs

 Primarily defendants

 Plaintiffs and defendants about equally

Primarily class action objectors 

 Other (specify): __________________________

 1 Amchem Products, Inc. v. Windsor, 521 U.S. 591 (1997). 2 Ortiz v. Fibreboard Corp, 527 U.S. 815 (1999).
National survey of counsel in class action litigation Federal Judicial Center March 2003

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29. In the past three years or so, how many class actions have you filed or defended (including those filed as part of a 

team of plaintiffs' attorneys)?------------------------------------------------------------>approximately _____ class actions

30. Of these class action lawsuits, what percentage did you file or defend in state court(s)?----->approximately _____ % 

31. What percentage of your work time has been devoted to civil litigation in state courts during the past five years*?-- > approximately _____ %

32. What percentage of your work time has been devoted to civil litigation in federal courts during the past five years*?

approximately _____ %

33. What percentage of your work time has been devoted to class action litigation (federal or state courts) during the 

past five years*?----------------------------------------------------------------------------------------->approximately _____ %

34. Comments. Please add any additional comments you may have about your experiences with filing, defending or removing class actions. Please return the questionnaire by March 31, 2003

THANK YOU

Please return the questionnaire in the enclosed envelope addressed to the Federal Judicial Center (Class Action Counsel 

Survey), One Columbus Circle, N.E., Washington, D.C. 20002. If you have questions, please call Tom Willging at 202- 502-4049 or Bob Niemic at 202-502-4074.

 *

 During the time you have been in practice, if less than five years.
The Federal Judicial Center

Board

The Chief Justice of the United States, Chair

Judge Pierre N. Leval, U.S. Court of Appeals for the Second Circuit

Judge Pauline Newman, U.S. Court of Appeals for the Federal Circuit

Judge Robert J. Bryan, U.S. District Court for the Western District of Washington

Judge James A. Parker, U.S. District Court for the District of New Mexico

Judge Sarah S. Vance, U.S. District Court for the Eastern District of Louisiana

Chief Judge Robert F. Hershner, Jr., U.S. Bankruptcy Court for the Middle District of

Georgia

Magistrate Judge Robert B. Collings, U.S. District Court for the District of Massachusetts

Leonidas Ralph Mecham, Director of the Administrative Office of the U.S. Courts

Director

Judge Barbara J. Rothstein

Deputy Director

Russell R. Wheeler

About the Federal Judicial Center

The Federal Judicial Center is the research and education agency of the federal judicial

system. It was established by Congress in 1967 (28 U.S.C. §§ 620–629), on the recommendation of the Judicial Conference of the United States.

By statute, the Chief Justice of the United States chairs the Center’s Board, which also

includes the director of the Administrative Office of the U.S. Courts and seven judges

elected by the Judicial Conference.

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include orientation seminars, continuing education programs, and special-focus workshops.

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groups in the federal system.

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judges and others from foreign countries and identifies international legal developments

of importance to personnel of the federal courts.