An Empirical Examination of Attorneys’

Choice of Forum in Class Action Litigation

Thomas E. Willging & Shannon R. Wheatman

Federal Judicial Center 2005

This publication was undertaken 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 Federal Judicial Center.
Blank pages inserted to preserve pagination when printing double-sided copies.
iii

Contents

I. Introduction and Overview 1

A. Overview 4

B. Overview of methods 6

II. Summary of Findings 8

A. Plaintiff attorneys 8

B. Defendant and plaintiff attorneys’ choice of a federal forum

compared 8

C. Attorney perceptions of judicial predispositions 9

D. Attorney perceptions and judicial rulings in removed cases 10

E. Attorney perceptions and monetary recoveries and settlements in removed

cases 11

F. Attorney perceptions and judicial rulings in removed cases,

arranged by perceived judicial predisposition 11

G. Judicial rulings and settlements in all cases 11

H. Attorney fees 12

III. Factors Affecting Choice of Forum 13

A. Plaintiff attorney reports on reasons for filing the named cases in federal or

state courts 14

1. Primary factors reportedly influencing plaintiff attorneys’ choice of

forum 15

2. Secondary factors reportedly influencing attorneys’ choice of forum 18

3. Summary 19

B. Comparison of plaintiff and defendant attorney reports of reasons for choosing

to file the named case in, or remove it to, federal court 20

1. Summary 22

C. Plaintiff and defendant attorney reports about any relationship between client

characteristics and filing and removing decisions 23

1. Differences between plaintiff attorneys who filed in state and federal

court 23

2. Differences between plaintiff and defendant attorneys 25

3. Summary 27

IV. 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 in relation to

attorney perceptions of judicial predispositions 30
Federal Judicial Center 2005

iv

V. Comparison of Rulings by State and Federal Courts in Removed Cases 34

A. Rulings on class certification 35

1. Differences between a ruling denying class certification and the absence of

such a ruling 36

B. Rulings in cases not certified as class actions 37

C. Procedural outcomes of certified class actions 38

D. Summary 40

VI. Relationships Among Attorney Perceptions of Judicial Predispositions in

Individual Cases and Outcomes of Judicial Rulings on Motions 42

A. Summary 46

VII. Procedural Outcomes, Monetary Recoveries, and Settlements in All Named 

Cases (Removed and Not Removed) 47

A. Certification for settlement or trial and litigation 47

B. Outcomes of certified and noncertified cases compared 49

C. Monetary and nonmonetary recoveries and settlements 50

1. Monetary recovery or settlement 51

2. Nonmonetary recovery 51

D. Attorney fees and expenses 52

E. Summary 52

F. Conclusions 53

Appendices 55

Methods Appendix 57

Regression Methods and Results 64

Questionnaire Appendix 79

Questionnaire 1: Plaintiff in Case Filed Originally in State Court and

Removed to Federal Court 81

Questionnaire 2: Plaintiff in Case Filed Originally in Federal Court 91

Questionnaire 3: Defendant in Case Filed Originally in State Court and

Removed to Federal Court 101

Questionnaire 4: Defendant in Case Filed Originally in Federal Court 111
1

I. Introduction and Overview

Attorneys’ choice of whether to file or litigate a class action in a state or federal

forum has been of great concern to policymakers who are considering how to

regulate class action litigation.

1 If an attorney for a plaintiff class can plead a

valid claim against a local defendant as well as an out-of-state defendant, that

attorney can generally choose between a state or federal forum and sometimes

from among multiple state or federal forums.

2 Federal jurisdiction in such a case

is typically based on diversity of citizenship between the plaintiff and the out-ofstate defendant. According to the removal statute, if the plaintiff pleaded a valid

claim against a local defendant then the case is not removable from state to federal court.

3 In practice, the defendant has the power to remove a case to federal

court and to force the plaintiff to seek remand of the case by the federal court

back to state court.

4

1. The proposed Class Action Fairness Act of 2005 would create a new category of federal

jurisdiction for class actions in which there is minimal diversity of citizenship between a class

member and a defendant, the amount in controversy exceeds the sum or value of $5 million,

and the class membership meets defined terms of the legislation. S. 5, 109th Cong. 1st Sess.,

§ 4 (2005). Class actions meeting those criteria would be removable from state to federal court

by any defendant without regard to whether a defendant is a citizen of the state in which the

action was brought. Id., § 5.

See also Deborah Hensler et al., Class Action Dilemmas 410–16, 481–83 (2000) (“RAND

Study”) (noting that a recurrent complaint is that plaintiff attorneys file lawsuits in courts,

generally state courts, where they believe the judges are more likely to certify a class action);

JoEllen Lind, “Procedural Swift”: Complex Litigation Reform, State Tort Law, and Democratic

Values, 37 Akron L. Rev. 717, 751 (2004) (observing that “[w]hether forum choice ought to

be constrained in damage class actions poses another dilemma for public policymakers”).

2. See generally Charles Alan Wright et al., Federal Practice and Procedure § 3723 (1998

& 2004 Supp.) (for a discussion of the traditional requirements for federal jurisdiction based

on diversity of citizenship).

3. 28 U.S.C. § 1441(b) provides that any action not based on a federal question “shall be

removable only if none of the parties in interest properly joined and served as defendants is a

citizen of the State in which such action is brought.”

4. 28 U.S.C. § 1441(a) provides that “[e]xcept as otherwise expressly provided by Act of

Congress, any civil action brought in a State court . . . may be removed by the defendant or

defendants.” See also 28 U.S.C. § 1446(d), which provides that filing a notice of removal with

the clerk of the state court “shall effect the removal and the State court shall proceed no further unless or until the case is remanded”; and 28 U.S.C. § 1447(c), establishing procedures

for filing a motion to remand and providing that if “at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded.”
Federal Judicial Center 2005

2

A defendant can successfully remove a case from state to federal court if

there is federal jurisdiction based on complete diversity of citizenship5 or on a

federal question pleaded in the complaint. As noted above, removal is not

authorized if one of the defendants is a citizen of the state in which the action

was brought.

6

Proponents of changing federal jurisdictional statutes assert that a major and

undesirable consequence of allowing plaintiff attorneys the option of selecting a

favorable forum has been a large number of class action filings in a small number of state courts that are, the proponents contend, predictably predisposed to

favor plaintiffs’ interests.

7 Proponents of change recommend expanding the

circumstances under which a defendant may remove a class action from state to

federal court.

8 Proposed legislation would permit removal of class actions to federal courts based on minimal diversity of citizenship, that is, where at least one

class member and one defendant are citizens of different states.

9

The call for legislative change reflects fundamental assumptions about plaintiff and defendant attorneys’ analyses and motivations and about the effects of

their decisions to choose a state or federal forum in which to litigate a class action. Many assume that the driving force in choice-of-forum decisions is the expected difference in class certification and case outcome based on how state and

federal judges apply substantive laws and procedural rules. For example, one set

of critics asserted “‘federal judges scrutinize class action allegations more strictly

than state judges and deny certification in situations where a state judge might

grant it improperly.’”10 An academic commentator summarized the state of the

debate in these words:

Plaintiffs view the federal courts as increasingly dominated by judges

sympathetic to business interests and defendants. Defendants view state 

courts, particularly where judges are elected, as pro-plaintiff, and, in certain venues, as beholden to plaintiffs’ attorneys. No matter that these 

5. For a discussion of the requirement of complete diversity of citizenship to establish

federal jurisdiction, see generally Wright et al., supra note 2, § 3605 (1998).

6. 28 U.S.C. § 1441(b) (West 2004).

7. See, e.g.,John H. Beisner & Jessica Davidson Miller, They’re Making a Federal Case of It

. . . in State Court, 23 Harv. J.L. & Pub. Pol’y 143 (2001) (focusing on three county courts that

had high volumes of class action filings relative to their populations).

8. Id. at 150–51. For a discussion of the circumstances under which class actions filed in

state court can be removed to federal court, see generally Wright et al., supra note 2, § 3723

(1998). For a brief summary of recent legislative actions designed to alter those rules, see

Wright et al., supra note 2, at 564 (Supp. 2004).

9. See, e.g., S. 5, 109th Cong. 1st Sess., § 4(a)(2)(A) (2005).

10. See, e.g., Beisner & Miller, supra note 7, at 154 (quoting a 1999 version of the RAND

study, supra note 1).
An Empirical Examination of Attorneys’ Choice of Forum in Class Action Litigation

3

stereotypes often fail to predict judicial behavior; they are given credence

by attorneys on both sides, and they influence the agendas of interest

groups and lobbyists concerning legislative and judicial initiatives.

11

In passing the Class Action Fairness Act of 2003, the House of Representatives

adopted a finding that “[t]hrough the use of artful pleading, plaintiffs are able to

avoid litigating class actions in Federal court, forcing businesses and other organizations to defend interstate class action lawsuits in county and State courts

where . . . less scrutiny may be given to the merits of the case . . . .”12

The above assumptions seem to be based on anecdotes of lawyers and lobbyists.

13 These often-extreme scenarios are presented as typical in class action litigation. Such claims divert policymakers’ attention away from typical cases and

interfere with a careful examination of the range of factors that might affect

choice of forum, such as the locus of the alleged harms, the residence of class

members, the applicable law, and the convenience of the parties and lawyers—

factors that might be rendered irrelevant by the proposed legislation. Prior to this

study, we had little empirical information on how such factors affect choice of

forum in class action litigation.

As to the assumptions that state courts favor plaintiffs and federal courts

favor defendants, despite the force with which conclusions have been asserted

there has been no quantitative empirical examination of the differences in the

treatment of class actions in state and federal courts. Nor has there been any

quantitative empirical examination of the factors affecting attorneys’ choices to

litigate in a state or federal forum.

14 The dearth of data has forced policymakers

and proponents of change to rely on anecdotes and assumptions.

15 Many as11. Edward F. Sherman, Introduction to the Symposium: Complex Litigation: Plagued by

Concerns Over Federalism, Jurisdiction and Fairness, 37 Akron L. Rev. 589, 598 (2004).

12. H.R. 1115, 108th Cong. 1st Sess, § 2(a)(4) (2003).

13. One quantitative study presented in support of the legislation is Beisner & Miller,

supra note 7. That study focuses on three “outlier” courts, known to be atypical of state courts

generally. As such, the study amounts to a collection of anecdotes and does not attempt to

sample the universe of state or federal class actions.

14. One very useful empirical study of attorney choice of forum examined civil litigation

in general and did not focus on class action litigation. 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).

15. RAND’s in-depth analysis of ten cases litigated in federal and state courts represents a

careful and systematic examination of choice-of-forum issues. See Hensler et al., supra note 1.

That study, however, was not quantitative and, as the authors stress, was not designed to examine typical cases or to reach conclusions that might be applied generally to class action litigation. Id. at 138 (“with only enough resources to conduct ten case studies, we could not select a statistically representative sample”). Beisner & Miller limited their study to three selected
Federal Judicial Center 2005

4

sume that the outcomes of class action litigation mirror the predictions of those

who succeed in choosing the forum, that is, plaintiffs who file and retain a class

action in state courts or defendants who successfully remove such an action to

the federal courts.

Rather than rely on assumptions, we sought to answer some of the following empirical questions about the class action litigation process:

• What factors influence plaintiff attorneys’ choice of forum for filing a

class action?

• What factors influence defendant attorneys’ choice of forum for defending a class action?

• How different are judicial rulings on class certification and other procedural matters in state and federal forums?

• How different are the case outcomes—mostly in the form of dismissals

or settlements—in state and federal forums?

• To the extent that both sides to the litigation base their forum-selection

decisions on expectations of favorable legal rules or judicial predispositions, how accurate do their perceptions prove to be?

A. Overview

This report presents empirical data and analysis relevant to the above questions.

Overall, our data lend support to the conventional wisdom that attorney choice

of forum is influenced by attorneys’ perceptions of how the state and federal forums are likely to treat their cases, both as to class certification and settlement

review, but our data also show that attorneys considered more than the perceived attitudes of judges. Attorneys also considered the underlying substantive

and procedural law to be applied in state and federal court as well as local factors,

such as the number of class members residing in the forum state and the local

origin of the facts underlying the complaint. Our data, however, lend little support to the view that state and federal courts differ greatly in how they resolve

class actions. For example, state and federal courts were equally unlikely to certify cases filed as class actions. Both state and federal courts certified classes in

fewer than one in four cases filed as class actions. Although state courts approved settlements awarding more money to the class than did federal courts,

that difference was a product of the size of the class; individual class members

state courts, one of which the authors characterized as an “outlier among outliers.” Beisner &

Miller, supra note 7, at 168.
An Empirical Examination of Attorneys’ Choice of Forum in Class Action Litigation

5

on average were awarded more from settlements in federal courts than in state

courts.

The balance of Part I of this report consists of a brief overview of the survey

methods used to gather empirical data from attorneys who litigated the terminated class actions in the sample. Part II summarizes the findings as a whole.

Part III describes and discusses the factors that plaintiff and defendant attorneys

identified as having affected their choice of a state or federal forum. The data reveal that one of the strongest factors in an attorney’s choice of forum is the attorney’s perception of a judicial predisposition to rule in favor of interests like

those of the attorney’s client. Local residence of the class members, location of

events underlying the claims, and local law were the other major factors.

Part IV examines factors associated with attorneys’ perceptions of judicial

predispositions. This part explores the differences in such perceptions in relation

to reports by the same attorneys on known or perceived differences between

state and federal substantive law, procedural rules, and judicial receptivity to

class actions.

Part V compares judicial rulings and case outcomes in cases that were remanded to state courts with those retained in the federal courts. Data come from

attorney reports of state and federal judicial rulings in a subset of removed class

actions. Part V also compares state and federal rulings on class certification, procedural rulings on dispositive motions, and settlement approval. It also covers

monetary recoveries—generally in the form of class-wide settlements—and attorney fees, class size, and recoveries per class member.

Part VI examines attorney perceptions of judicial predispositions in relation

to the specific cases in which plaintiff and defendant attorneys reported such

perceptions. This approach allows us to compare and contrast those perceptions

with the rulings that would be expected in those cases if such judicial predispositions were a significant factor.

Part VII adds to the database of removed cases by including surveyed cases

filed originally in federal court. This part examines judicial rulings, settlement

amounts, nonmonetary relief, and attorney fees for all cases in the sample, not

just the removed cases. This section also compares class certification rates, dismissals, recoveries, and attorney fees in this study with available empirical data

from prior studies.

The Methods Appendix discusses the design and content of the questionnaire, the population from which the sample of cases and attorneys was drawn,

the data collection, the representativeness of the data, and the mode of analysis.

The Methods Appendix also presents a detailed discussion of the regression

methods and results, including charts of the ten predictor models that emerged

from the analysis.
Federal Judicial Center 2005

6

The Questionnaire Appendix contains a copy of each of the four questionnaires: one for plaintiff attorneys in cases filed originally in state court; one for

plaintiff attorneys in cases filed originally in federal court; and one each for defendant attorneys in cases filed in state or federal court.

B. Overview of methods

In the course of conducting empirical research for another purpose relating to

choice of forum in class action litigation,

16 we examined plaintiff and defendant

choice-of-forum motivations and decisions by means of a survey of attorneys in

a representative national sample of recently terminated cases that had been filed

as class actions in state and federal courts. Our data from state court filings derive exclusively from attorney reports about cases plaintiffs filed in state courts,

cases that defendants subsequently removed to federal courts. About half of

those cases were remanded to state courts for final resolution.

We sent questionnaires17 to 2,132 attorneys in 1,235 class action cases that

had been either filed in federal court or removed to federal court between 1994

and 2001 and terminated between July 1, 1999, and December 31, 2002. Out of

1,851 valid mailings we received responses from 728 attorneys, an overall response rate of 39%. The number of responses was sufficient to test the statistical significance of differences among the responses. In 107 of the 621 cases, we

received responses from attorneys for both sides.

18 Of the responding attorneys,

312 (43%) represented plaintiffs and 416 (57%) represented defendants. 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.

19 Attor16. At the request of the Judicial Conference of the United States Advisory Committee on

Civil Rules, FJC researchers studied the effects of two recent Supreme Court decisions on attorneys’ choice of a federal or state forum. See Thomas E. Willging & Shannon R. Wheatman,

Attorney Reports on the Impact of Amchem and Ortiz on Choice of a Federal or State Forum in

Class Action Litigation (Federal Judicial Center 2004), available at http://www.fjc.gov (under

“Publications,” “Class Action Litigation”)

17. Each questionnaire was eight pages long. The questionnaires are in the Questionnaire

Appendix, infra. Some of the original sets of questionnaires were returned uncompleted because the attorney was not at the address; some attorneys returned uncompleted forms, stating

that they did not have sufficient information to answer the questionnaire.

18. All responses were used for analyses based on attorney reports (Parts I and III). For

analyses done at the case level (Parts II, IV, and V), if two responses referred to the same case,

each response was given a weight of 0.5.

19. The most important feature of a response rate is whether the respondents “are essentially a random sample of the initial population and thus a somewhat smaller sample of the

total population.” Earl Babie, Survey Research Methods 182 (1990). For further discussion of

the representativeness of the sample of cases and of the responses from attorneys, see infra

Methods Appendix, at pages 62–63.
An Empirical Examination of Attorneys’ Choice of Forum in Class Action Litigation

7

neys were asked to report information about a specific case in which they had

represented a party (the “named case”). We selected the named cases from the

database used for an earlier FJC report on class action filing activity.

20

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 in their filing and removal decisions. Questions

called for numerous attorney judgments about whether individual factors might

have influenced the 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 at the .05 level or better, which means

the probability that the differences occurred by chance is at most one in

twenty.

21

20. See Bob Niemic & Tom Willging, Effects of Amchem/Ortiz on the Filing of Federal

Class Actions: Report to the Advisory Committee on Civil Rules (Federal Judicial Center

2002), available at http://www.fjc.gov (under “Publications,” “Class Action Litigation”).

21. Further discussion of methods can be found in the Methods Appendix, infra.
Federal Judicial Center 2005

8

II. Summary of Findings

A. Plaintiff attorneys

The questionnaire gave plaintiff attorneys a host of reasons why they might

have filed the named case in state or federal court (the named case is the case

about which the attorneys were surveyed). Multiple regression analysis revealed

three factors that were strongly related to attorneys’ decisions about where to

file:

• attorney perceptions that state or federal judges were predisposed to rule

on certain claims in line with the interests of the attorney’s client;

• the source of law (state or federal) applicable to the claims; and

• “state connections,” 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.

The substantive law and the discovery rules governing the case also had an

impact on the attorneys’ decisions. Those two factors were directly related to attorney perceptions of judicial predispositions. Attorney decisions to file a class

action in state or federal court were also related to the location of a competing or

overlapping class action.

Personal and social characteristics of clients had little effect on the attorneys’

decisions. A class representative’s local residence was the client characteristic

most strongly associated with a plaintiff’s decision to file a class action in a state

court—a factor captured as part of the “state connections” variable. The defendant’s type of business was also associated with a plaintiff’s choice of forum.

B. Defendant and plaintiff attorneys’ choice of a federal forum

compared

Defendant attorneys in removed cases and plaintiff attorneys in cases filed in

federal courts each chose to litigate in a federal forum. Defendant attorneys in

removed cases, however, more often reported 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. A defendant attorney was also far more likely than a plaintiff attorney to refer to the attorney’s

personal preferences or to client preferences as a basis for selecting a federal forum.
An Empirical Examination of Attorneys’ Choice of Forum in Class Action Litigation

9

Responses from both plaintiff and defendant attorneys who sought a federal

forum indicated that client characteristics, such as defendant’s place of residence,

gender, race, and ethnicity, were not related to choice of a federal or state forum.

Attorneys infrequently perceived a litigation advantage or disadvantage arising

out of any of those characteristics. Plaintiff attorneys, however, tended to see a

proposed class representative’s local residence as an advantage even when they

filed the class action in federal court.

C. Attorney perceptions of judicial predispositions

Attorneys on both sides of the litigation reported that they had expectations

about judicial predispositions when they filed or removed the named case. About

half of the plaintiff attorneys who filed cases in state courts said they thought

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

like those of their clients. About 25% of plaintiff attorneys who filed in federal

court reported that they expected federal judges to be more likely than state

judges to rule in favor of interests like those of their clients, and about 40% of

plaintiff attorneys filing in federal court reported that they perceived no difference between state and federal judges in that regard. About 75% of defendant

attorneys who removed cases to federal court said that they had an impression at

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

interests like those of their clients. About 20% of defendant attorneys said they

perceived no difference between the two sets of judges.

Often, attorneys’ impressions of judicial predispositions were related to the

attorneys’ judgments about the relative favorability of the substantive law applicable to their clients’ claims and defenses; to the relative favorability of a court’s

rules; and to the perceived judicial receptivity to the type of claims their clients

presented. Plaintiff attorneys who filed in state court and perceived state judicial

predispositions in favor of their clients’ interests were more likely to report that

state substantive law and state discovery, evidence, and class action certification

rules favored their clients’ interests. Plaintiff attorneys who perceived a state judicial predisposition 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 who removed cases to federal court presented almost, but not exactly, a

mirror image of plaintiff attorneys. Defendant attorneys who reported perceiving

federal court predispositions in favor of their clients’ interests were more likely to

report that federal discovery, expert evidence, and general evidentiary rules favored their clients’ interests. Defendant attorneys who perceived a federal judicial

predisposition were also more likely than other defendant attorneys to report
Federal Judicial Center 2005

10

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 three sections (Parts II.D–II.F) we summarize findings about

how those perceptions matched up with judicial rulings, procedural outcomes,

and monetary recoveries and settlements in two groups of named cases:

(1) those removed from federal courts (below) and (2) all of the named cases

(see Part VII).

D. Attorney perceptions and judicial rulings in removed cases

When we examined the removed cases, we found little relationship between the

attorneys’ perceptions of what the federal or state court was likely to do and

courts’ actual rulings. 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 types of courts.

22 Federal and state judges were

about equally likely to certify cases as class actions (which occurred 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. Federal judges were, however, more likely than state judges to issue rulings denying class certification;

state judges, on the other hand, were more likely than federal judges to take no

action regarding class certification.

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. Moreover, in certified class actions, state and federal courts were

equally likely to approve a class-wide settlement. In one or two instances in federal or state court the settlement had been revised before court approval. No

judge rejected a class settlement.

22. 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.
An Empirical Examination of Attorneys’ Choice of Forum in Class Action Litigation

11

E. Attorney perceptions and monetary recoveries and settlements in

removed cases

Despite the similarities in rulings, monetary recoveries differed in the two court

systems, although they almost always took the form of settlements fashioned

by the parties. In removed cases that had been remanded to state courts, the

amount of class-wide monetary recoveries and settlements was substantially

larger than monetary recoveries and settlements in cases retained in federal

court. The typical (median) recovery was $850,000 in state court and $300,000

in federal court. Those differences, however, appeared to be a product of the

larger size of class actions 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 court.

F. Attorney perceptions and judicial rulings in removed cases,

arranged by perceived judicial predisposition

When we analyzed the removed cases according to plaintiff and defendant attorney perceptions of judicial predispositions, the results were similar to those regarding all removed cases as described in the previous paragraphs. Attorneys’

perceptions of state or federal judicial predispositions toward their clients’ interests showed little or no relationship to the state or federal judicial rulings in the

surveyed cases. Judges certified or dismissed class actions with equal frequency

in state and federal courts. As found in the examination of all removed cases,

judges in federal courts tend to deny certification more frequently while state

courts more frequently take no action on class certification. Judicial rulings on

dispositive motions were just about equally likely to lead to a dismissal in the

two sets of courts. In short, the predispositions anticipated by the attorneys

failed to materialize in the form of judicial rulings.

G. Judicial rulings and settlements in all cases

Looking at all closed cases in our sample (including cases filed originally in federal court), 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.

23 Of the certified cases, 58% were certified

for settlement and 42% were certified for trial or litigation.

24

23. See Thomas E. Willging, Laural L. Hooper & Robert J. Niemic, Empirical Study of

Class Actions in Four Federal District Courts (Federal Judicial Center 1996) (hereinafter “FJC

1996 Study”). A somewhat shorter version of that study can be found at Thomas E. Willging,

Laural L. Hooper & Robert J. Niemic, An Empirical Analysis of Rule 23 to Address the Rulemak-
Federal Judicial Center 2005

12

In both state and federal courts, all certified class actions settled on a classwide basis. The typical (i.e., median) recovery in the class-wide settlements was

$800,000. Twenty-five percent of the recoveries and settlements exceeded

$5.2 million, and 25% were $50,000 or less. In contrast, most cases that were

never certified were terminated by dismissal, summary judgment, voluntary dismissal, or settlement of class representatives’ claims.

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.

H. Attorney fees

Attorney fees typically were 27% of the class recovery in remanded cases and

29% of the class recovery in cases retained in the federal courts, about the same

percentage as in the prior FJC study of class actions.

25 Twenty-five percent of

the cases involved fees of 36% or more.

ing Challenges, 71 N.Y.U. L. Rev. 74 (1996). The FJC’s 1996 research, 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%. FJC 1996

Study, at 7. The percentage of those cases certified for settlement was 39%. Id. While the study

methods were different, comparing data from the current study and the 1992–1994 study suggests that the rate of class certification as a whole most likely has declined in the past decade.

24. Id. The FJC 1996 Study and the current study suggest that the percentage of class actions certified for settlement has increased from the 37% rate found in 1996.

25. Median rates in the four federal districts studied in 1996 ranged from 27% to 30%. Id.

at 68–69.
An Empirical Examination of Attorneys’ Choice of Forum in Class Action Litigation

13

III. Factors Affecting Choice of Forum

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.

26 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, higher likelihood of attorney fee award, jury pool differences, better rules of evidence, greater judicial

pretrial involvement, and selection choice made by client or referring attorney.”27

In addition, in diversity cases attorneys indicated that “attorney habit, convenience, and case delay” were the primary factors affecting their choice of forum.

28

The questionnaires we sent to attorneys inquired about all of the above factors. In addition, we asked about matters peculiar to class actions, such as the

rules governing certification of a class, class notification requirements, and the

availability of interlocutory appeal. We also asked about judicial predisposition to

rule in favor of client interests, about judicial receptivity to class actions, about

judicial resources available to manage the litigation, and about the effect of federal multidistrict litigation procedures.

29 Finally, we asked about whether the decision of where to file or defend might have been influenced by various party

characteristics, such as residence, gender, ethnicity, race, religion, nationality,

reputation, type of business, corporate status, and the like.

We analyzed the attorneys’ questionnaire responses regarding these and

similar factors. If this report does not mention a specific factor from the above

list, that means attorneys did not report any meaningful influence of that factor

on their decisions.

26. Miller, supra note 14, at 382.

27. Id.

28. Id. at 383.

29. For copies of the four questionnaires used, see infra Questionnaire Appendix.
Federal Judicial Center 2005

14

A. Plaintiff attorney reports on reasons for filing the named cases in

federal or state courts30

First, by conducting multivariate analyses of the wide range of variables described above, we analyzed why plaintiff attorneys file class actions in state or

federal court. Multivariate analyses, as the name implies, allow us to look at the

relationships between pairs of variables while controlling for the effects of other

variables.

31

We concentrated on factors we expected to be associated 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.

32

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.

30. 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.

31. See infra Methods Appendix, pages 64–78, for a more complete description of these

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

and therefore some of the reported frequencies in this section are different from those reported

in sections using other analyses. 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.

32. We were unable to examine defendant attorneys’ reasons for removing cases to federal

court or for 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.
An Empirical Examination of Attorneys’ Choice of Forum in Class Action Litigation

15

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

forum

Factor Description of Factor in Questionnaire

33

Judicial predisposition Attorneys’ impression of any predisposition of state or federal judges

toward interests like those of their clients (Question 23)

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

law (Question 1)

State connections The average of the percentage of class members residing in the state

(Question 4) and the percentage 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 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)

Attorney’s federal civil

litigation

Percentage of attorney’s workload devoted to civil litigation in federal

court during the past five years (Question 33)

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

years (Question 31)

1. Primary factors reportedly influencing plaintiff attorneys’ choice of

forum

Three factors appear to have the greatest connection with where attorneys filed

their class action cases: (1) attorneys’ perception of judicial predispositions to

rule for one side or the other; (2) the source (state or federal) of the law supporting the claims; and (3) 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 connections”). How attorneys perceived these three factors proved

to be closely related to their choice of forum.

Perception of judicial predispositions. The questionnaire asked attorneys to

indicate whether they perceived, at the time of filing, that state or federal judges

33. Question numbers refer to the questionnaires addressed to plaintiff attorneys, which

can be found in the Questionnaire Appendix, infra. 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.
Federal Judicial Center 2005

16

had any predisposition toward ruling in favor of interests like those of their clients.

34 Attorneys tended to file in the jurisdiction they thought would be predisposed to their clients’ interests. Forty percent of attorneys filing in state court

reported that they perceived a state judicial predisposition. Thirty-two percent of

attorneys filing in federal court—as compared to 4% of attorneys filing in state

court—reported that they perceived a federal judicial predisposition. A number of

attorneys (28% of those filing in federal court and 56% of those filing in state

court) reported that they perceived no differences between state and federal

judges.

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 of attorneys filing in federal court and 5% of attorneys filing in state court reported a majority of federal claims. Sixteen percent 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 plaintiff attorneys who filed cases originally in federal court reported that the

named case involved the laws of many states.

35 Comments from attorneys in a

few instances indicated that they sometimes filed a case in federal court because

they wanted to pursue at least one federal claim and knew that a single federal

claim would allow a defendant to remove the case to federal court.

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

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

in, the state where the class action was filed.

36 Attorneys filing in federal court

reported a greater percentage of class members residing outside the state of filing

34. In another analysis, reported in Part IV.B, Tables 7 and 8, 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. Attorneys’ judgments about the favorability of

substantive law are also related, but to a lesser degree, to their impressions about judicial

predispositions.

35. We did not use the same form of Question 21 for plaintiff attorneys who filed named 

cases originally in state court.

36. Questions 4 and 5 provide the underlying support for the “state connections” variable

(see infra Questionnaire Appendix). Question 4 asked for the percentage of claimants residing

in the state where the class action was filed. Question 5 asked for “the percentage of claimsrelated transactions/events [that] occurred in the state where 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.
An Empirical Examination of Attorneys’ Choice of Forum in Class Action Litigation

17

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 when the case has factual

and legal issues involving a larger number of states and tend to file in state

courts when the case has factual and legal issues involving 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 connections,” by taking the

average of the percentage of class members who resided in the state where the

case was filed and the percentage of claims-related events that occurred in the

state where the case was filed.

37 Attorneys who filed in state court had a higher

average of state connections (73%) than attorneys who filed in federal court

(57%).

Perception of judicial predispositions, source of law, and state connections. 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 in a

case with a majority of state claims and with a high average38 of class members

residing in, and claims-related events originating 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 in a case with federal claims and with a

low average39 of claimants residing in, and claims-related events occurring in, the

state where plaintiffs filed the class action.

37. 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.

38. 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 connections”).

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

reported state connections of 20% or less (which we call “low state connections”).
Federal Judicial Center 2005

18

2. Secondary factors reportedly influencing attorneys’ choice of forum

Other reasons for filing in state or federal court. We found other factors were associated with attorneys’ choice of forum. In the questionnaire,

40 attorneys reviewed a list of reasons that might have influenced their decisions about where

to file the case. This list 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 include the following as reasons for their decision: favorableness of substantive law and discovery rules; judicial receptiveness to such claims

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

the court location.

41 We found that those reasons were associated with where

the named case was filed. The probability of filing in state court increased if an

attorney chose any of those reasons for selecting a particular court.

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

Table 2: Reasons selected by plaintiff attorneys 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 between state and federal courts in this table are all 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.

42 Attorneys filing in state court re40. See infra Questionnaire Appendix, Question 21.

41. 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 that we did 

not measure that may have influenced the relationship.

42. 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

infra Methods Appendix, at pages 58–60 (“Population of class action terminations”). Attorneys
An Empirical Examination of Attorneys’ Choice of Forum in Class Action Litigation

19

ported 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 been filed in a federal court.

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 generally varies in the same direction

as the attorneys’ recent filing activity. Attorneys filing class actions in state

court reported filing 30% of all their civil litigation in federal court in the past

five years. Attorneys filing class actions in federal court reported filing 46% of

their 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. This factor had little

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.

3. Summary

The multivariate analysis indicates that plaintiff attorneys’ choices between state

and federal forums followed their expectations about where their clients’ interests would best be served. Those attorneys’ choices also followed their assessment of whether a state or federal forum had more of a nexus with the underlying litigation. When plaintiff attorneys perceived that state judges were receptive

to, and predisposed to rule in favor of, claims like those of their clients; that state

substantive law and discovery rules were more favorable to their clients; and that

the facts, legal claims, and class members were linked to the state, then they

were far more likely to file in state rather than federal court. The absence of any

in the survey may, of course, have referred to cases that we treated as a single consolidated

case.
Federal Judicial Center 2005

20

or all of those factors favorable to plaintiffs and to a state filing increased the

likelihood of a federal filing.

43

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 plaintiff

44 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. Claims based on state law were considerably more frequent in cases originally filed in state courts. Defendant attorneys who removed

named cases to federal court were more likely to report that all claims in their

cases were based on state law than were plaintiff attorneys who filed named

cases originally in federal court: 58% of defendant attorneys reported that all

claims were based on state law, but 39% of plaintiff attorneys so reported.

Eighty-eight percent 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 had more state connections (i.e., percentage of in-state class membership and case-relevant factual

links to the forum state) (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

43. For a detailed presentation of ten models that predict the probability of filing in state

or federal court according to the most important factors identified in the regression analysis,

see infra Methods Appendix, at pages 64–78.

44. 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.
An Empirical Examination of Attorneys’ Choice of Forum in Class Action Litigation

21

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 a single state,

whereas 16% reported class members from all 50 states. Twenty-nine percent of

plaintiff attorneys who filed in federal court reported that the class members resided in two or a single state, 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.

Table 3 shows the percentage of attorneys who reported that they relied on

specific reasons for filing in or removing a case to federal court.

Table 3: Reasons cited by attorneys for choice of federal court*

Reason

Defendant Removed to

Federal Court

Plaintiff Filed in

Federal Court

Client prefers federal court 65% Not available**

Attorney prefers federal court

† 57% 26%

Class certification† 47% (more stringent) 8% (less stringent)

Class notification† 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 awards)

Court has more resources

† 30% 14%

Court is more expeditious

† 27% 17%

Court location favorable†† 9% 17%

* Table 3 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.
Federal Judicial Center 2005

22

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.

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 that a federal court would scrutinize a motion for

class certification more closely than a state court; few indicated a belief that they

would have an easier time with class certification in federal court. 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.

As was true regarding plaintiff attorneys’ choice of a state forum (see Part

III.A and Table 2), defendant attorneys’ choice of a federal forum included consideration of 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 court resources and how fast their cases 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.

1. 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. As one might expect, both sets of attorneys

sought substantive law and procedural rules that would favor their clients.
An Empirical Examination of Attorneys’ Choice of Forum in Class Action Litigation

23

C. 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 the attorneys 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, 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, though 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 III.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 importance of these party characteristics among plaintiff attorneys who filed in state or federal court as well as between plaintiff and defendant attorneys.

1. 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 the defendant’s type of business and the 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 a class representative’s type of business; defendant’s outof-state residence; defendant’s reputation; or either party’s gender, race, ethnicity, religion, socioeconomic status, corporate status, and foreign national status.

Table 4 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.
Federal Judicial Center 2005

24

Table 4: 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 between federal and state court in this table are statistically significant at the .05

level.

The majority of plaintiff attorneys who filed in state court said they had expected the type of business conducted by the defendant to be an advantage to

the plaintiff’s case; 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.

45 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 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 residence46

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 III.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 at45. Because the number of attorneys who provided this information was small, we were

unable to conduct a meaningful statistical analysis.

46. 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.
An Empirical Examination of Attorneys’ Choice of Forum in Class Action Litigation

25

torneys 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.

2. 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 federal 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 5 shows the percentage of plaintiff and defendant attorneys who rated

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

Table 5: Ratings of party characteristics by all plaintiff attorneys and by

defendant attorneys who removed the named case to federal court

Variable Attorney Advantage No Advantage/

Disadvantage Disadvantage

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

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

Plaintiff 22% 77% 1% Defendant’s type of business (N=360)

Defendant 12% 78% 10%

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

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

Plaintiff 24% 72% 4% Defendant’s corporate status (N=319)

Defendant 25% 59% 15%

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

ethnicity, religion, or socioeconomic

status (N=294)

Defendant 9% 80% 11%

Note: Differences between plaintiff and defendant attorneys 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 attor-
Federal Judicial Center 2005

26

neys to say that they thought the local residence of the class representative

would be 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 a 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, more than three-quarters of the attorneys 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 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.
An Empirical Examination of Attorneys’ Choice of Forum in Class Action Litigation

27

3. Summary

Debates about why attorneys choose to file class actions in state or federal court

point to the legal interests of the parties and party characteristics on both sides

of the cases, and those two types of factors often become intertwined. 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. In our analyses, attorneys’ expectations of advantages differed somewhat based on party characteristics, but the failure of such characteristics to surface in the multivariate analysis shows that these party characteristics are not critical factors in plaintiff attorneys’ choice of whether to file a class

action in state or federal court (see Part III.A).
Federal Judicial Center 2005

28

IV. Plaintiff and Defendant Attorneys’ Perceptions

of State and Federal Judges’ Predispositions

Toward Plaintiff and Defendant Interests

As shown in Part III.A, a key factor in a plaintiff attorney’s choice of forum is

the attorney’s impression of any predispositions federal or state judges might

have to rule in favor of interests like those of the attorney’s 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 and found even

stronger perceptions on that side as well.

In this section we analyze in more detail 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 IV.A we report attorney perceptions of judicial predispositions, and in Part IV.B we report the extent to which such predispositions

are related to differences in federal and state substantive law and procedural and

evidentiary rules. Part V compares those perceptions with the rulings and monetary recoveries and settlements or other outcomes in the removed and remanded

cases as a whole. Part VI separates out cases in which attorneys reported a perceived judicial disposition and examines the rulings in the underlying cases to

determine whether they confirmed the predisposition or not.

A. Attorneys’ perception of judicial predispositions

For both the filing and removal settings, our questionnaire 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’?”47

Table 6 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 to federal courts.

47. See infra Questionnaire Appendix, Question 23.
An Empirical Examination of Attorneys’ Choice of Forum in Class Action Litigation

29

Table 6: 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 a case in state or federal

court or removing a case 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
Federal Judicial Center 2005

30

state judges to be more receptive to their clients’ interests, but nonetheless filed

their cases in federal court. Perhaps the latter attorneys chose not to file in state

court because they were pursuing federal causes of action, including claims

within the exclusive jurisdiction of the federal courts, 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 type of court or the other.

B. Substantive law, procedural rules, and judicial receptivity in

relation to attorney perceptions of judicial predispositions

In this section we attempt to identify relationships that may shed light on the

nature of the perceived predispositions. Are attorneys’ perceptions of judicial

predispositions a surrogate for differences between federal and state substantive

law, procedural rules, and/or evidence rules? Or do attorneys actually perceive

judicial receptivity to claims like those of the their clients? Perceived judicial predispositions appear to represent attorneys’ perceptions of substantive legal, procedural, and evidence rules favorable to their clients combined with perceptions

of judicial receptivity to enforcing those rules.

Table 7 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. Note that the two numerical columns represent different sets of

attorneys and the figures represent the percentage of each set.
An Empirical Examination of Attorneys’ Choice of Forum in Class Action Litigation

31

Table 7: 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 Their 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 IV.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 (see Table

6). Table 7 shows that several reasons 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 rules on discovery and evidence (expert and nonexpert) favored their clients’ interests. Defendant attorneys 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. Note that the attorneys’ perceptions of judicial receptivity were notably more frequent (83%) than their perceptions of substantive law differences (71%). That discrepancy indicates that a small percentage of these attorneys perceived a judicial receptivity to their clients’ claims that

existed independently of the applicable substantive law.
Federal Judicial Center 2005

32

Table 8 examines similar phenomena from the perspective of plaintiff attorneys who filed actions in state court. As with Table 7, the two numerical columns in Table 8 represent different sets of attorneys and the figures represent

the percentage of each set.

Table 8: 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 (see Table 6). Table 8 reveals some of the apparent reasons

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 plaintiff 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
An Empirical Examination of Attorneys’ Choice of Forum in Class Action Litigation

33

merits. As was the case with defendant attorneys, plaintiff attorneys’ perceptions

of judicial receptivity to their clients’ claims (78%) was considerably higher than

those attorneys’ perceptions of the favorability of substantive law (61%), indicating that a small percentage of attorneys perceived a judicial receptivity to their

clients’ claims, a receptivity that existed independently of the applicable substantive law.

In analyzing other aspects of the survey, we found evidence that attorneys’

perceptions of judicial predispositions were not accurate when compared with

judicial rulings on class certification and other procedural motions. In Part V we

present data based on attorney reports about removed cases, data indicating that

the rulings in those cases as a whole did not support the attorneys’ perceptions

of judicial predispositions.

Attorney perceptions of judicial predispositions, however, were associated

with, but not necessarily caused by, the amount of class monetary recoveries

and settlements in state and federal courts. In all but one instance the outcome

was in the form of a settlement negotiated by the parties. Such outcomes do not

appear to be the direct consequence of federal or state judicial predispositions because the only judicial rulings in such cases would have been the decision to

certify a class and to approve the proposed settlement. About half of the class

certifications were based on settlement classes (see Tables 9 & 13) that are generally agreed to by the parties. In only one instance did a federal judge reject a

proposed class settlement for a certified class (see Tables 12 & 19). Thus, the

case outcomes were not the direct product of judicial rulings.
Federal Judicial Center 2005

34

V. Comparison of Rulings by State and Federal

Courts in Removed Cases

Our sample of cases includes 438 that were removed from state to federal court;

221 of those 438 cases (50%) were remanded by the federal court to the state

court in which they were originally filed. Of the 438 cases, 292 had been closed

by the time of our survey. Of the 292 closed cases, 169 (58%) were retained in

federal court, and federal judges had remanded 123 (42%) to the state court in

which they were originally filed. The remanded cases were less likely to be closed

(123/221=56%) than the cases retained in federal courts (169/217=78%).

48 All

analyses in this section, except Table 10, use the subset of closed cases.

Information about a group of closed remanded cases provided an opportunity

to compare state courts’ and federal courts’ rulings, procedural outcomes, and

monetary recoveries and settlements. The only apparent systematic difference

among the remanded and removed 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 9), motions to dismiss or for summary judgment (see Table

11), or reviews of class settlements (see Table 12) reveal any systematic differences in the ways federal and state courts resolved the two sets of proposed class

actions. We will also examine cases that produced any type of recovery, generally

in the form of settlements, for the class (see Table 13).

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.

As we saw in Parts III and IV, 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 re48. 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.
An Empirical Examination of Attorneys’ Choice of Forum in Class Action Litigation

35

moved 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” (see Table 6). 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” (see Table 6). 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 outcomes of a sample of

cases in federal and state courts?

A. Rulings on class certification

Table 9 compares federal and state judicial rulings on class certification.

Table 9: Comparison of outcomes regarding class certification for closed

removed cases with closed remanded cases

Outcome Regarding Class

Certification

Removed to Federal Court

and 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 between remanded and removed cases 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.

49

In both federal and state forums a majority of cases filed as class actions received no ruling on class certification. Federal judges, however, were more likely

49. The overall class certification rate for all removed cases was 21%. Note that the class

certification rate for all the named cases in the survey was 24% (see Part VII.A), indicating that

cases filed originally in federal court had a higher class certification rate than cases removed 

from state court.
Federal Judicial Center 2005

36

than state judges to rule on class certification and federal judges were more than

twice as likely to deny class certification.

50 Federal judges’ higher rate of denying

class certification appears to be a counterpart of state judges’ higher rate of not

ruling on class certification.

1. Differences between a ruling denying class certification and the

absence of such a ruling

Table 9 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 a case’s outcome did a ruling denying class certification have?

Looking at all cases in the study we found no statistically significant difference in the likelihood that a case that was denied certification or a case that had

no action taken on certification would produce a monetary recovery for the proposed class. 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 even a recovery that included no nonmonetary relief.

Table 10 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.

50. In the FJC 1996 Study, researchers found 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. FJC 1996 Study, supra note 23, at 9. 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.
An Empirical Examination of Attorneys’ Choice of Forum in Class Action Litigation

37

Table 10: 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 defendant attorneys’ 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 11 compares 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.
Federal Judicial Center 2005

38

Table 11: Comparison of rulings and procedural outcomes for removed

and remanded cases filed, but not certified, as class actions

Rulings and Procedural

Outcomes

Removed to Federal Court and

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%)

Judgment after class trial 0 0

Note: Total percentages may exceed 100% because respondents could select more than one category.

* Differences between remanded and removed cases are statistically significant at the .05 level.

Table 11 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 related to our earlier finding regarding the denial or absence of class certification. Rulings that expressly denied certification were related to the likelihood

of 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 12 shows little variation in results. Federal courts were somewhat

more likely than state courts to approve a proposed class-wide settlement or to

approve a revised settlement, but, again, the differences were not statistically significant.
An Empirical Examination of Attorneys’ Choice of Forum in Class Action Litigation

39

Table 12: Comparison of procedural outcomes for removed and remanded

certified closed class actions

Outcomes of Certified Cases*

Removed to Federal

Court and Remanded to

State Court (N=28)

Removed to Federal Court

and Not Remanded (N=37)

Class-wide settlement approved 23 (82%) 33 (88%)

Class-wide settlement revised and approved 1 (4%) 2 (5%)

Class representatives settled on individual basis 0 1 (3%)

Class-wide 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.

* The differences between remanded and removed cases in this table are not statistically significant

at the .05 level.

Table 13 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%). That outcome,

however, might be an artifact of the timing of the survey.

51

51. We used the date of termination in federal court as the cutoff date for our sample. For

remanded cases, a number remained pending at the time of the survey. One might infer that

those cases had survived early dismissal and thus may have been more likely than the closed

cases to produce a monetary recovery when they came to a conclusion in the state court.
Federal Judicial Center 2005

40

Table 13: Comparison of monetary recoveries and settlements and class

size in remanded and removed certified class actions

Monetary Recovery/Class Size

Removed to Federal Court and

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.

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 12). The total recovery for the class, of course,

represents the common 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 monetary recoveries in federal versus state

court appear to be a product of the smaller class sizes.

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.

D. Summary

In comparing remanded and removed cases we found few differences in legal

rulings on procedural motions in state or federal courts. Federal and state judges
An Empirical Examination of Attorneys’ Choice of Forum in Class Action Litigation

41

were about equally likely to certify a class, whether for trial and litigation or settlement. One notable 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.

Thus, data based on state and federal judges’ rulings do not support attorneys’ perceptions that state courts are likely to favor plaintiffs in class action litigation and that federal courts are likely to favor defendants. In the next section

we examine those rulings in direct relationship to specific perceptions and expectations of plaintiff and defendant attorneys.
Federal Judicial Center 2005

42

VI. Relationships Among Attorney Perceptions of

Judicial Predispositions in Individual Cases

and Outcomes of Judicial Rulings on Motions

In this section we focus specifically on attorneys’ statements about perceived

judicial predispositions toward the attorneys’ clients and the rulings in those

cases. We look at federal and state court rulings on class certification and on

procedural matters in certified and noncertified cases. The small number of cases

with monetary recoveries does not allow us to look closely at the outcome of the

litigation, attorney fee awards, and class recoveries.

Table 14 compares federal and state judicial rulings on class certification in

relation to plaintiff attorneys’ perceptions that judicial predispositions existed in

the state courts that would favor their clients’ interests.

Table 14: Comparison of attorney reports of class certification rulings in

remanded and removed cases where plaintiff attorneys perceived a

judicial predisposition in state court in favor of plaintiff

Outcome Regarding Class

Certification

Removed to Federal Court and

Remanded to State Court (N=20)

Removed to Federal Court

and Not Remanded (N=35)

Class certified for trial and litigation

or settlement

5 (25%) 11 (31%)

Certified for trial and litigation 2 (30%) 6 (60%)

Certified for settlement 4 (70%) 4 (40%)

Certification denied 5 (25%) 7 (20%)

No action taken on certification

(before case resolved)

10 (50%) 17 (49%)

Note: The differences in this table are not statistically significant. Apparent differences between

totals and subtotals are the result of rounding of weighted responses by two attorneys in the same case.

The most noteworthy aspect of the data in Table 14 is that there are no

statistically significant differences in the rulings on whether or not to certify a

class in state and federal courts. Despite plaintiff attorneys’ expectations—

reported with the benefit of hindsight after these cases had closed—that a state

court would rule more favorably toward interests like the plaintiffs’ interests,

these plaintiffs in fact received comparable rulings from state and federal courts

on the central issue of whether or not to certify a class. In other words, the attorneys’ perceptions of judicial predispositions proved to be no more accurate

than a prediction based on flipping a coin. The fact that these predispositions
An Empirical Examination of Attorneys’ Choice of Forum in Class Action Litigation

43

diction based on flipping a coin. The fact that these predispositions were asserted

in response to a survey conducted after the cases had closed suggests that attorney assertions about judicial predispositions reflect general suppositions about

the two sets of courts more than specific predictions about the case at hand.

Table 15 presents the defendant–federal court counterpart of Table 14.

Table 15: Comparison of attorney reports of class certification rulings in

remanded and removed cases where defendant attorneys perceived a

judicial predisposition in state court in favor of defendant

Outcome Regarding Class

Certification

Removed to Federal Court and

Remanded to State Court (N=55)

Removed to Federal Court

and Not Remanded (N=61)

Class certified for trial and litigation

or settlement

6 (11%) 8 (13%)

Certified for trial and litigation 4 (67%) 4 (50%)

Certified for settlement 2 (33%) 4 (50%)

Certification denied* 9 (16%) 19 (31%)

No action taken on certification

(before case resolved)**

40 (73%) 34 (56%)

* Difference is statistically significant at the .05 level.

** Difference is statistically significant at the .10 level.

As with plaintiff attorneys (see Table 14), defendant attorneys’ statements

about judicial predispositions yielded no significant differences in the likelihood

that a federal or state court would certify a class. Federal judges certified classes

slightly more often than state judges, but the differences are not statistically significant. Fewer than 15% of the judges in either type of court certified classes.

Like the perceptions of plaintiff attorneys discussed above, defendant attorneys’

perceptions of judicial predispositions regarding affirmatively certifying a class

proved to be no more accurate than a prediction based on a coin toss. Judges in

federal court, however, denied class certification statistically significantly more

often than state court judges. As was the case with remanded cases as a whole

(see Part V.A), state judges were more likely to have taken no action on class

certification.

Table 16 presents data comparing rulings and procedural outcomes for removed noncertified cases (including cases in which there was no ruling on class

certification) in which a plaintiff attorney perceived a judicial predisposition in

state court.
Federal Judicial Center 2005

44

Table 16: Comparison of attorney reports of rulings and procedural

outcomes in remanded and removed noncertified class actions where a

plaintiff attorney perceived a judicial predisposition in state court in favor

of plaintiffs

Rulings and Procedural Outcomes

Removed to Federal Court and

Remanded to State Court (N=27)

Removed to Federal Court

and Not Remanded (N=29)

Dismissed on merits 2 (7%) 3 (10%)

Dismissed for lack of jurisdiction 1 (4%) 1 (3%)

Summary judgment entered 1 (4%) 1 (3%)

Settled on individual basis* 4 (15%) 12 (41%)

Settled as part of another case 1 (4%) 1 (3%)

Voluntarily dismissed* 18 (67%) 10 (34%)

Tried on an individual basis 0 (0%) 1 (3%)

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.

As with the rulings on class certification, judicial rulings on the merits of

the case in the form of motions to dismiss or for summary judgment fail to reveal any relationship with plaintiff attorneys’ perceptions that state courts will

favor their clients’ interests. The relatively small number of cases dismissed, or

resolved by summary judgment, in federal and state courts are not different in

any statistically significant way. Cases remanded to state court were more likely

to be voluntarily dismissed and less likely to be settled on an individual basis.

Neither of those outcomes is the direct result of a judicial ruling. Moreover, assuming that voluntary dismissal is a less beneficial outcome for the plaintiff

than an individual settlement, those data do not support plaintiff attorneys’ perceptions that state courts would favor their clients’ interests.

Table 17 presents the defendant–federal court counterpart of Table 16.
An Empirical Examination of Attorneys’ Choice of Forum in Class Action Litigation

45

Table 17: Comparison of attorney reports of rulings and procedural

outcomes in remanded and removed noncertified class actions where a

defendant attorney perceived a judicial predisposition in federal court in

favor of defendants

Rulings and Procedural

Outcomes*

Removed to Federal Court and

Remanded to State Court (N=50)

Removed to Federal Court and

Not Remanded (N=56)

Dismissed on merits 12 (24%) 13 (23%)

Dismissed for lack of jurisdiction 3 (6%) 1 (2%)

Summary judgment entered 5 (10%) 8 (14%)

Settled on individual basis 12 (24%) 19 (34%)

Settled as part of another case 3 (6%) 1 (2%)

Voluntarily dismissed 14 (28%) 14 (25%)

Judgment after individual trial 1 (2%) 0 (0%)

Note: Total percentages may exceed 100% because respondents could select more than one category.

* The differences between remanded and removed cases in this table are not statistically significant.

Whether a federal or state court resolved the case appears to have made no

difference. In the cases remanded to state courts, 40% were dismissed or had

summary judgments entered, and in the cases retained in the federal courts, 39%

were dismissed or had summary judgments. Of course, the slight difference is

not statistically significant. Again, we find no support for defendant attorneys’

perceptions that federal courts were more likely to rule in favor of their clients’

interests.

We also examined the attorneys’ perception of judicial predispositions from

another angle—the procedural outcomes in state and federal courts, including

the outcome of reviewing class settlements, for cases certified as class actions.

As with our analysis of those outcomes in Part V.C (see Table 12), we found

that the results were substantially the same in state and federal courts: Classwide settlements were approved in both sets of courts. The small number of

cases, however, does not support a reliable test of statistical significance.

We also asked whether there was any relationship between attorney perceptions and the amount recovered by the class, the size of the class, and the

amount and percentage of attorney fees awarded to the attorney for the class.

We were unable to come to any firm conclusions because relatively few cases

met the preconditions of having both a class-wide monetary recovery and a perceived judicial predisposition in one direction or the other. For those few cases in

which data were available, the results paralleled those presented in Table 13. Total monetary recoveries for the class were higher in state court and consequently
Federal Judicial Center 2005

46

attorney fee recoveries in state court were higher. Class sizes were smaller in federal courts and the recovery per class member somewhat higher in federal court.

A. Summary

Attorney perceptions of judicial predispositions toward their clients’ interests

show little or no relationship to the judicial rulings in the surveyed cases, even

when we grouped the cases according to the direction of the perceived predispositions. Judges certified or dismissed class actions with equivalent frequency in

state and federal courts. The sole difference was that judges in federal courts

more frequently denied certification while state courts more frequently took no

action on class certification.
An Empirical Examination of Attorneys’ Choice of Forum in Class Action Litigation

47

VII. Procedural Outcomes, Monetary Recoveries,

and Settlements in All Named Cases

(Removed and Not Removed)

A. Certification for settlement or trial and litigation

This part shifts focus to examine the larger number of attorney responses in 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 Parts V and VI).

In the majority of cases (57%) the court took no action regarding class certification. Judges certified 24% of the cases 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.

52

In their 1996 study, FJC researchers found that 152 of 407 (37%) proposed

class actions had been certified as class actions, either for settlement or for trial.

53

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 the differences in research

methods, given the objectivity of class certification it seems reasonable to infer

that the class certification rate has decreased considerably in recent years.

Of the cases reported as certified, 42% were certified for trial and litigation

and 58% were certified for settlement (see Table 18, columns 2 & 3). Relatively

few (10%) of the cases certified for settlement were certified before the parties

presented a settlement to the trial court. In the 1996 FJC study, 59 of 152 (39%)

certified class actions were certified for settlement purposes only.

54 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 considerably and, correspondingly, the percentage certified

for trial and litigation has decreased equivalently.

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 18

52. The 24% class certification rate suggest that federal question cases are more likely to

be certified than diversity cases, which were certified at a 21% rate. See supra Part V.A. Detailed

comparison of federal question and diversity cases is beyond the scope of this report.

53. FJC 1996 Study, supra note 23, at 9.

54. Id.
Federal Judicial Center 2005

48

shows the outcomes for class actions certified for trial and litigation compared

with class actions certified for settlement only.

Table 18: Comparison of case outcomes for class actions certified for trial

and litigation and class actions certified for settlement

Outcomes of Certified Class Actions

Certified for Trial and

Litigation (N=52)

Certified for

Settlement (N=73)

Class-wide settlement approved* 38 (72%) 69 (95%)

Class-wide settlement revised and approved 2 (3%) 4 (5%)

Class-wide settlement proposed and not approved

by court

1 (2%) 0

Class representative settled individually 1 (2%) 0

Class-wide trial resulting in plaintiff judgment 3 (6%) 0

Class-wide 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 earlier FJC study 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

certification or followed certification by a considerable time.

55 In the current

study, we asked how often certification for settlement purposes preceded settlement and found that only three cases (10%) were certified as settlement classes

before settlement.

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

class-wide 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.

56 One might expect, of course, that

55. 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).

56. Id. at 66 & 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
An Empirical Examination of Attorneys’ Choice of Forum in Class Action Litigation

49

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 19, below, we find that 13 of 486 cases (3%) went to trial on an individual (2%) or

class-wide (4%) basis.

Table 18 shows that six cases were 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

$1.6 million; $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.

57 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 earlier FJC study reported that rulings on such motions often preceded any action

on class certification.

58

Table 19 compares survey data for certified and noncertified cases filed as

proposed class actions. Cases certified for settlement are included in the certified

column.

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 U.S. Courts, Annual Report of the Director of the

Administrative Office of the U.S. Courts 153, Table C-4 (1990); Administrative Office of the

U.S. Courts, Judicial Business of the United States Courts; 2000 Annual Report of the Director

159, Table C-4 (2000).

57. 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)”).

58. See FJC 1996 Study, supra note 23, at 29–35. That 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. Id. 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 1996 FJC

empirical study.
Federal Judicial Center 2005

50

Table 19: Comparison of case outcomes for certified and noncertified cases

filed as class actions

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 noncertified 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 1996 FJC study.

The dichotomy between certified and noncertified 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 class-wide merit, at least in the sense of surviving or

avoiding motions to dismiss or motions for summary judgment. Certified cases

concluded with a court-approved, class-wide settlement 89% of the time; a few

were tried and a few were dismissed involuntarily. Noncertified cases did not

show evidence of having class-wide 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 class-wide recoveries and settlements. Class recoveries were almost always the

result of negotiated class settlements, not directly the result of court judgments
An Empirical Examination of Attorneys’ Choice of Forum in Class Action Litigation

51

or jury verdicts, but reported class settlements almost always occurred in cases

that a court certified as a class action for settlement or trial and litigation.

59

1. Monetary recovery or settlement

Overall, 142 (23%) of the named cases led to a class-wide 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.

2. Nonmonetary recovery

Table 20 shows the frequency of providing four types of nonmonetary relief in a

class recovery: transferable and nontransferable coupons; injunctive relief; and

cy pres class/public interest remedies. Altogether these nonmonetary remedies

were the sole remedies provided to the class in fifteen cases. The total numbers

in Table 20 include cases in which there was no class recovery, monetary or otherwise. Note that in Table 20 the third column is a subset of the second column,

and the fourth column is a subset of the third.

Table 20: 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.

60

59. Amchem Prods., Inc. v. Windsor, 521 U.S. 591 (1997), made it clear that a class settlement cannot be approved unless a class can be certified under Rule 23 standards, with the sole

exception that the manageability of a class need not be established when the certification is for

settlement. Amchem, at 613–14.
Federal Judicial Center 2005

52

As Table 20 shows, attorneys reported that transferable coupons were part or all

of the recovery in nineteen cases (6% of all cases). Of those cases, eight (5% of

cases without a monetary recovery) had no monetary recovery, and in six cases

(4% of cases with no other recovery) transferable coupons represented the only

remedy provided to the class.

61 Nontransferable coupons were reported in ten

cases (3% of all cases), all but three of which (2% of cases with no monetary

recovery) were accompanied by a monetary recovery for the class. In two cases

(1% of cases with no other recovery), nontransferable coupons were the sole

remedy for the class.

D. Attorney fees and expenses

Attorney fees have been characterized as “the lightning rod in the controversy

over damage class actions.”62 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.

63 At the high end, in 25% of the 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 FJC research on class action litigation in federal courts.

64 As

found in the two studies, a diminishing minority of cases filed as class actions

survived the litigation process to the point of having a class certified. Noncertified 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 (2%) involved nontransferable coupons and no monetary remedy.

60. 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 Hensler et al., supra note 1, at 488–89.

61. We have no further information about whether the transferable coupons were in fact

marketable.

62. Hensler et al., supra note 1, at 434.

63. These data dovetail with the results of the earlier 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 1996 Study, supra note 23, at 69.

64. See generally, id.
An Empirical Examination of Attorneys’ Choice of Forum in Class Action Litigation

53

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 very close to those reported in the 1996 FJC study.

F. Conclusions

We based our analyses on responses to questionnaires completed by 728 attorneys in 621 recently terminated class action cases that had been filed in federal

court or removed to federal court. The returned questionnaires represented a random, national sample sufficiently large to test the statistical significance of

differences among the response categories of interest. The questionnaire asked

attorneys about the reasons they either filed in federal court or removed the case

to federal court, and about the judicial rulings and outcomes of the cases.

We began by asking what factors affected plaintiff and defendant choice of

forum. For plaintiff and defendant attorneys we found that expectations of favorable treatment, based on perceived judicial predispositions to favor interests

like those of their clients, were a major force in attorneys’ respective decisions

about where to litigate. Those expectations, though, were not necessarily the

product of attorney perceptions of judicial bias. We found for plaintiff attorneys

that expectations about judicial predispositions were related to attorney perceptions of favorable substantive law and favorable discovery rules in the state forum they selected. Similarly, for defendant attorneys, expectations about judicial

predispositions were also related to perceptions of favorable substantive law and

discovery rules as well as to favorable class action and expert evidence rules in

the federal forum they selected. In their responses to our survey, defendant attorneys described an almost totally favorable legal environment for their clients

in the federal courts—a convergence of judicial receptivity, predispositions, and

favorable substantive and procedural rules.

We found plaintiff attorneys’ preferences for state forums to be associated

with local (that is, state) factors, such as the source of plaintiffs’ legal claims in

state law, the factual origins of plaintiffs’ claims in the forum state, and the

number of class members residing in the forum state. A class representative’s

local residence also played a role. Indeed, the defendant’s type of business was

the only factor strongly associated with a plaintiff’s choice of forum that did not

necessarily have a local nexus. These empirical findings are not consistent with

some of the assumptions underlying proposed class action legislation.

65

We also analyzed differences between state and federal courts’ rulings in the

closed cases in our sample. The general expectation—from attorney responses to

our questionnaire and conventional wisdom—was that state courts are more

65. See supra Part I, text accompanying notes 10–15.
Federal Judicial Center 2005

54

permissive toward class actions. However, we found little difference in the rulings issued by the two sets of courts. Class actions were equally unlikely to be

certified in both state and federal courts—fewer than one in four cases filed as

class actions were certified as such. Federal courts were more likely to deny class

certification explicitly; state courts were more likely to take no action regarding

class certification. Rulings on dispositive procedural motions were not significantly different in the two sets of courts.

The outcomes of settlements differed in the aggregate in state and federal

courts, but not on an individual class member basis. In the aggregate, the typical

(median) monetary class settlement in state court was more than twice the

amount of the typical settlement in federal court. On an individual level, however, class members in our sample were awarded amounts that were about 50%

higher in federal court than in state court. The percentage of attorney fees did

not vary much between state and federal courts, but the larger class awards (resulting from larger class membership in state cases) yielded larger attorney fee

awards. While attorneys did not identify fee awards as a major factor affecting

their choice of forum in a given class action, the results of our study indicate

that the prospect of greater attorney fees in state courts might serve as an incentive to file class actions in state courts. Our data suggest, however, that the size

of the class, not the type of forum, is the predominant factor in determining

award sizes. A larger class in a federal court would be expected to generate as

large a fee award as the same size class in a state court.

Even when we matched attorney perceptions of judicial predispositions with

judicial rulings in the cases for which those predispositions were reported, we

did not find evidence that the attorneys’ perceptions were accurate. To the contrary, the percentage of class actions certified, the percentage dismissed, and the

percentage of settlements approved were indistinguishable in state and federal

courts without regard to whether an attorney predicted a predisposition in that

court or not.

In the end, the data from this study document the conventional expectations of lawyers in choosing a forum. At the same time, the case-based findings

reveal that those expectations did not prove to be accurate predictors of judicial

rulings in a random sample of cases. State forums were not typically more favorable for plaintiffs, and federal forums were not typically more favorable for defendants. Plaintiff and defendant expectations proved to be true in about half of

the cases, which suggests that those outcomes were highly likely to have occurred by chance. Attorney choice of forum may have been influenced by routine acceptance of a general set of preconceptions about the differences between

state and federal courts.
55

Appendices
Blank pages inserted to preserve pagination when printing double-sided copies.
57

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 courts66—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 casebased 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.

66. 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.
Federal Judicial Center 2005

58

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 III and IV is the report of an attorney; the unit

of analysis in Parts V, VI, and VII 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 IV 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

as 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
An Empirical Examination of Attorneys’ Choice of Forum in Class Action Litigation

59

orders or by orders of the Judicial Panel on Multidistrict Litigation (JPML). We

then included only the lead case in the database.

We searched for class action cases using the on-line services of LexisNexis

CourtLink.

67 This service maintains a database of docket sheets for nearly all the

federal district courts.

68 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.

69 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.

70 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.

71 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

67. 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), available at http://www.fjc.gov (“Publications,” “Class Action Litigation”).

68. 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.

69. 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.

70. 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.

71. Focusing on federal question and diversity-of-citizenship jurisdiction excludes cases

involving the United States as a plaintiff or defendant.
Federal Judicial Center 2005

60

were (1) all labor cases; (2) all securities cases;

72 (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 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 filed as original actions in

federal court or 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

72. 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.
An Empirical Examination of Attorneys’ Choice of Forum in Class Action Litigation

61

of any predisposition a state or federal judge may have toward 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 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.

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.

73 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 cases. 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

73. We would like to thank Dinita L. James, co-chair of that committee, and the attorneys

who assisted us with our pilot test.
Federal Judicial Center 2005

62

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 attorneys74) 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.

Approximately two weeks after the initial mailing we sent a follow-up postcard to each attorney, thanking those attorneys who had completed the questionnaire and prompting 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 72875 attorneys in the sample representing 621 different cases. The response rate was 39%.

76

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 plain74. Docket sheets did not always list attorneys representing both sides.

75. 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.

76. 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 bad addresses, and 151 questionnaires were returned by attorneys who told

us they did not have enough information to answer the questionnaire.
An Empirical Examination of Attorneys’ Choice of Forum in Class Action Litigation

63

tiffs, 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 50 or more

attorneys; 26% practiced in firms of 2 to 10; 24% practiced in firms of 11 to 49;

and 2% were government attorneys. On average, these attorneys had practiced

law for 22 years; 91% had practiced law for at least 10 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 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 III.A. Other data analysis is generally based on crosstabulations of the data, comparison of chi-square tests of differences between

pairs of variables, and tests of differences between medians.
Federal Judicial Center 2005

64

Regression Methods and Results

Below we present the techniques used to analyze attorneys’ choice of forum as

presented in Part III.A. We provide additional statistical results and also an alternative way to explain the findings.

Multivariate analyses77

Multivariate regression is a statistical technique that quantifies the influence of

each of several factors (independent variables) on the phenomenon being studied (dependent variable).

78 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 indicates a

higher likelihood of filing in state court.

Forward logistic regression79 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.

77. 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.

78. See generally David W. Hosmer & Stanley Lemeshow, Applied Logistic Regression

31–90 (2d ed. 2000) (describing and applying logistic regression models).

79. We used both SPSS 10.0 and SAS version 8.2 to model the data.
An Empirical Examination of Attorneys’ Choice of Forum in Class Action Litigation

65

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,

80 source of law,81 and state facts82—that are as80. 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.

81. 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
Federal Judicial Center 2005

66

sociated with 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.

83

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 to file in state

court than an attorney who perceives a federal judicial predisposition. 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.

84

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

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).

82. “State facts” (also referred to in the report as “state connections”) 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.

83. 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 goodness-of-fit index is greater than .05.

84. 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.
An Empirical Examination of Attorneys’ Choice of Forum in Class Action Litigation

67

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).

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.
Federal Judicial Center 2005

68

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
An Empirical Examination of Attorneys’ Choice of Forum in Class Action Litigation

69

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
Federal Judicial Center 2005

70

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

`
An Empirical Examination of Attorneys’ Choice of Forum in Class Action Litigation

71

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-offit 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

`
Federal Judicial Center 2005

72

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

`
An Empirical Examination of Attorneys’ Choice of Forum in Class Action Litigation

73

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

`
Federal Judicial Center 2005

74

Model 8: Competing or overlapping actions

This model has four predictors (perceived judicial predisposition, source of law,

state facts, and where other cases85 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

85. 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.
An Empirical Examination of Attorneys’ Choice of Forum in Class Action Litigation

75

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
Federal Judicial Center 2005

76

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
An Empirical Examination of Attorneys’ Choice of Forum in Class Action Litigation

77

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

continued next page
Federal Judicial Center 2005

78

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
79

Questionnaire Appendix

Questionnaire 1: Plaintiff in Case Filed Originally in State Court and

Removed to Federal Court, 81

Questionnaire 2: Plaintiff in Case Filed Originally in Federal Court, 91

Questionnaire 3: Defendant in Case Filed Originally in State Court and

Removed to Federal Court, 101

Questionnaire 4: Defendant in Case Filed Originally in Federal Court, 111
Blank pages inserted to preserve pagination when printing double-sided copies.
An Empirical Examination of Attorneys’ Choice of Forum in Class Action Litigation

81

Questionnaire 1:

Plaintiff in Case Filed Originally in State Court and

Removed to Federal Court
Blank pages inserted to preserve 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.
An Empirical Examination of Attorneys’ Choice of Forum in Class Action Litigation

91

Questionnaire 2:

Plaintiff in Case Filed Originally in Federal Court
Blank pages inserted to preserve 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.
An Empirical Examination of Attorneys’ Choice of Forum in Class Action Litigation

101

Questionnaire 3:

Defendant in Case Filed Originally

in State Court and Removed to Federal Court 
Blank pages inserted to preserve 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.
An Empirical Examination of Attorneys’ Choice of Forum in Class Action Litigation

111

Questionnaire 4:

Defendant in Case Filed Originally 

in Federal Court
Blank pages inserted to preserve 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

5

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

7

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

8

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

Magistrate Judge Robert B. Collings, U.S. District Court for the District of

Massachusetts

Judge Bernice B. Donald, U.S. District Court for the Western District of Tennessee

Judge Terence T. Evans, U.S. Court of Appeals for the Seventh Circuit

Chief Judge Robert F. Hershner, Jr., U.S. Bankruptcy Court for the Middle District of

Georgia

Judge Pierre N. Leval, U.S. Court of Appeals for the Second Circuit

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

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.

The organization of the Center reflects its primary statutory mandates. The Education Division plans and produces education and training programs for judges and

court staff, including satellite broadcasts, video programs, publications, curriculum

packages for in-court training, and Web-based programs and resources. The Research

Division examines and evaluates current and alternative federal court practices and

policies. This research assists Judicial Conference committees, who request most Center research, in developing policy recommendations. The Center’s research also contributes substantially to its educational programs. The two divisions work closely with

two units of the Director’s Office—the Systems Innovations & Development Office

and Communications Policy & Design Office—in using print, broadcast, and on-line

media to deliver education and training and to disseminate the results of Center research. The Federal Judicial History Office helps courts and others study and preserve

federal judicial history. The International Judicial Relations Office provides information to judicial and legal officials from foreign countries and assesses how to inform

federal judicial personnel of developments in international law and other court systems that may affect their work.