Class Actions and Mass Tort
Litigation in a Global Context
Prof. Linda S. Mullenix
Human Rights Class Actions in
American Courts, Part II
International Mass Tort Litigation
Human Rights Class Actions in American Courts
 Academic Commentary:
 Kevin R. Johnson, International Human
Rights Class Actions: New Frontiers for
Group Litigation, 2004 Mich. St. L. Rev.
643 (2004)
 Margaret G. Perl, Not Just Another Mass
Tort: Using Class Actions to Redress
International Human Rights Violations, 88
Georgetown L.J. 773 (2000)
Human Rights Class Actions in American Courts
 Questions:
 What are the views of Prof. Johnson and
Ms. Perl relating to the use of the class
action rule for resolving international
human rights violations?
 What positive benefits do they discuss?
 What problems, if any, to implementing an
American-style class action rule for
international human rights violations?
Human Rights Class Actions in American Courts
 Prof. Johnson (theses):
 Views human rights litigation as emergence of
novel form of social justice litigation
 Discusses examples of Yugoslavia litigation,
Hilao, and Holocaust recovery litigation
 Forces that have expanded scope of litigation:
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Growing use of class actions for social reform in
the United States
Class action favorite tool for social reformers in
the United States
Globalization of the international political economy
Human Rights Class Actions in American Courts
 Prof. Johnson (theses):
 Class actions challenge notion that
litigation is only between private parties
 Class actions challenge concept of
national borders and state sovereignty
 Class actions that cross national borders
deserve greater scrutiny
Human Rights Class Actions in American Courts
 Prof. Johnson (theses):
 Development of human rights class
actions in the U.S.:
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1980 decision in Filartiga v. Pena-Irala
Reinvigorated use of Alien Tort Claims Act
Facilitated bringing civil actions in U.S.
courts for human rights abuses in other
countries
Enactment of the Torture Victim Protection
Act
Human Rights Class Actions in American Courts
 Prof. Johnson (theses):
 New international human rights litigation is
natural and logical extension of “impact
litigation” in the U.S.
 Example: class litigation played unique role in
immigration law through reforming misconduct
by identifying a pattern and practice of illegal
behavior
 Immigration class actions share many
characteristics with new international human
rights class actions
Human Rights Class Actions in American Courts
 Prof. Johnson (theses):
 Purposes of international human rights class
actions:
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Damages sought, but unlikely to be recovered
However, class action may bring public attention to
human rights atrocities:
“Indeed, unlike ordinary mass tort class actions,
monetary or injunctive relief may not even be
expected – or the primary goal – in some cases.”
International human rights litigation may comprise
part of a larger strategy for social change
 Holocaust litigation spurred diplomatic settlement
between German and U.S. governments
Human Rights Class Actions in American Courts
 Prof. Johnson (theses):
“The motivation of the attorneys in
international human rights class actions
often differs from that of lawyers in mass
tort class actions. Attorneys seeking
social change are often motivated
primarily by political goals, perhaps those
of the organization they are affiliated with,
as opposed to monetary compensation
from a settlement.”
Human Rights Class Actions in American Courts
 Prof. Johnson (theses):
 Difficulties of International Human Rights
Class Actions:
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Role of the attorney: actions are attorneydriven and class actions may be pursued
by attorneys with their own political
agendas
Courts placed in a more political role than
is usual
Human Rights Class Actions in American Courts
 Prof. Johnson (theses):
 Examples of Bracero class litigation and Mexican
repatriation class litigation:
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Reflected new strategy to call attention to
problems
Goal to build pressure on Congress for possible
political action (hope of reparations)
Compensation only part of the reason for lawsuit
This characterteistic separates human rights
litigation from “garden variety” mass tort cases
seeking mega-damages
Not Just Another Mass Tort?
Human Rights Class Actions in American Courts
 Margaret G. Perl, Not Just Another Mass Tort:
Using Class Actions to Redress International
Human Rights Violations, 88 Geo. L.J. 773 (2000)
 Also comments on Hilao and Karadzic class
actions
 Article written before de-certification of the
Karadzic class action
 Also notes expanded use of human rights class
actions resulting from Alien Tort Claims Act and
Torture Victims Protection Act
Human Rights Class Actions in American Courts
 Perl (theses):
 American federal courts should use more
liberal standards for class certification
when presented with human rights cases
 Human rights class actions should not be
subjected to strict analysis applied to
mass tort cases
 Courts should take into account purposes
of human rights litigation and lack of
feasible alternatives for claimants
Human Rights Class Actions in American Courts
 Perl (theses):
 Hilao and Karadzic cases demonstrates
more lenient approach to class
certification than in conventional mass
tort cases
 Easy commonality found in Karadzic case:
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Questions revolved around acts of the
defendant
Court satisfied all claims arose out of
“ethnic cleansing campaign”
Human Rights Class Actions in American Courts
 Perl (theses):
 Typicality requirement also easily satisfied in
Hilao litigation

Court satisfied that class representatives injuries
“virtually identical” to those of class – whether
victim experienced pain and suffering from torture,
execution, or disappearance
 Appellate court did not find fault with lack of in-
depth analysis on predominance and superiority
requirements in Hilao
 Court diverged on strict analysis of manageability
required in other mass tort cases
 Court approved elaborate three-phase trial plan
with statistcial damages
Human Rights Class Actions in American Courts
 Perl (conclusions):
“There is no principled way to distinguish
Marcos and Karadzic from the mass tort
precedent to allow for a more lenient
application of the Rule 23 requirements
except to acknowledge that the substance
of the claim matters to courts when
crafting their Rule 23 analysis. ATCA and
TVPA cases appear to be certified more
readily than mass tort despite similar
difficulties in meeting Rule 23’s
requirements.”
Human Rights Class Actions in American Courts
 Perl (conclusions):
“As the number of class actions based on
international human rights violations increases in
future years, courts should openly recognize the
unique policy implications of these cases and
resist the urge to treat them as harshly as current
mass tort precedent would have them do. This is a
principled exercise of judicial discretion under
Rule 23 premised on the realization that class
actions under the ATCA and TVPA are too distinct
from mass tort to be subject to the same
assumptions and analysis.”
Human Rights Class Actions in American Courts
 Questions:
 At the time Perl wrote her article, the Karadzic
class action had been certified. The same court,
however, subsequently de-certified the class
action. Does that change Perl’s analysis and
conclusions?
 Do you agree with Perl that human rights class
actions are different than mass tort class
actions?
 Should human rights class actions be subject to
easier class certification? Why? Are you
persuaded by Perl’s arguments for this position?
International Mass Tort Litigation:
Two Case Studies
In re Ski Train Fire in Kaprun, Austria
In re Factor VIII or Factor IX Concentrate Blood
Products Litigation
International Mass Tort Litigation
 Questions:
 What is an international mass tort litigation?
 Are international mass tort cases different than
international human rights violations?
 Can and should American courts resolve
international mass tort litigation?
 Should international mass torts be handled
differently than domestic American mass tort
cases?

Should different standards apply to international
mass tort cases?
In re Ski Train Fire in Kaprun, Austria on
November 11, 2000
International Mass Tort Litigation
 In re Ski Fire in Kaprun, Austria:
 Factual Basis:
 Funicular train fire in tunnel near Kaprun, Austria,
November 11, 2000
 155 passengers and crew killed
 Victims:
 92 Austrians
 37 Germans
 10 Japanese
 8 Americans
 4 Slovenians
 2 Dutch
 1 Britain, 1 Czech
International Mass Tort Litigation
 In re Ski Fire in Kaprun, Austria:
 The Litigation:
 American family members filed litigation in the U.S.
 Scattered litigation consolidated under MDL
procedures in federal court in New York
 Plaintiffs sought damages, declaratory, injunctive
relief
 Substantive legal allegations (claims):
 Tunnels improperly designed, constructed,
maintained
 Negligent operation and promotion
 Fraudulent misrepresentation of safety
 Negligent infliction of emotional distress
International Mass Tort Litigation
 In re Ski Fire in Kaprun, Austria:
 The Litigation:
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The Defendants:
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Siemens Corporation, Siemens AG, and
multiple other German and Austrian corporate
entities and holding companies
Manufacturers and operators of the train
International Mass Tort Litigation
 In re Ski Fire in Kaprun, Austria:
 Procedural Basis:
 Action brought in the court’s diversity jurisdiction
 American plaintiffs; foreign defendants
 Sought class certification under Rule 23(b)(2) and
Rule 23(b)(3)
 Class definition:
 “on behalf of a class of heirs and representatives
of victims of the Kaprun tragedy who consent to
be included as members of the class”
International Mass Tort Litigation
 Questions:
 Do the facts of the Kaprun train fire present the
type of situation that should be handled through
class action litigation?
 What problems are presented by this proposed
class action?
 Should the court certify this class?
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Why?
In what fashion should the court certify this class
action?
International Mass Tort Litigation
 In re Ski Fire in Kaprun, Austria:
 Decision of the trial court judge (Judge
Scheindlin):
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Court certifies the class action for liability issues
only (not damage phase of trial)
Proposed class satisfied adequacy requirements
Proposed class satisfied predominance for a Rule
23(b)(3) damage class
Class action superior to other forms of dispute
resolution
Court orders an “opt-in” class
International Mass Tort Litigation
 In re Ski Fire in Kaprun, Austria:
 Judge Scheindlin’s decision – Adequacy of Representation:
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Defendants attack adequacy of class representatives
(both class representative and class counsel)
Court holds class representative Habblett has standing
under Texas law to bring suit as his daughter’s
representative, and to represent class members
Habblett has sufficient knowledge of the case;
appreciates responsibilities as class rep.
However, court refuses to permit Habblett to be sole
class representative; conditions certification upon
naming other class rep. and representative for foreign
plaintiffs
International Mass Tort Litigation
 In re Ski Fire in Kaprun, Austria:
 Judge Scheindlin’s decision – Adequacy of
Representation (class counsel):
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Detailed lengthy discussion of dispute among
class attorneys
Class attorneys unwilling to work with one another
Court canvasses and describes disputes
Court orders class certification conditioned upon
one attorney being appointed to serve as liaison
for foreign (non-American) class members
International Mass Tort Litigation
 In re Ski Fire in Kaprun, Austria:
 Judge Scheindlin’s decision – Predominance of
Common Issues:
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Class treatment on fraud claim appropriate in this
case
No variation in representations of safety nor in
plaintiffs’ reliance on those representations
Same reasoning applies to Ps’ claims for
intentional infliction of emotional distress
Only individualized issues relate to damages, not
to liability issues
International Mass Tort Litigation
 In re Ski Fire in Kaprun, Austria:
 Judge Scheindlin’s decision – Superiority:
 Court recognizes traditional reluctance to certify
class actions for mass tort cases
 However, court recognizes “recent” growing
recognition that mass accident cases ought to be
maintained as class action
 Class action here would be not only appropriate
but also beneficial:
 Class action limited only to liability
 All members in same position re Ds: no
individualized defenses
 Little risk that Ps will want to pursue their own
claims
International Mass Tort Litigation
 In re Ski Fire in Kaprun, Austria:
 Judge Scheindlin’s decision – Superiority:
 “Because the individual class members do
not have the wherewithal to individually
litigate the defendants’ liability . . . the
class action mechanism is the superior
method for adjudicating the defendants’
liability.”
International Mass Tort Litigation
 In re Ski Fire in Kaprun, Austria:
 Judge Scheindlin’s decision – Superiority:
 “The non-American plaintiffs will be unable to bring
their damages actions against the foreign defendants
in the United States because there is no diversity
jurisdiction over a foreign plaintiff suing a foreign
defendant in the United States.”
 “I recognize that class certification will allow many
non-Americans to take advantage of this country’s
legal system and its class action device, which is
unavailable in many foreign jurisdictions.”
International Mass Tort Litigation
 In re Ski Fire in Kaprun, Austria:
 Judge Scheindlin’s decision –Opt-In
requirement:
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Opt-in class is necessary in these
circumstances
Class means that all plaintiffs waive their
right to sue Ds in foreign jurisdictions
Would be unfair to include members in a
class that depends on waiver of a right
Requirement to opt-in found in federal fair
Labor Standards Act class actions
International Mass Tort Litigation
 Judge Scheindlin’s decision – Opt-In
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requirement:
No prior case law permitting opt-in requirement
But, nothing in rule or case law precludes opt-in
requirement
Judge’s authority to order opt-in procedure
derives from judge’s equitable powers
Finally, no certification under Rule 23(b)(2) – no
additional benefit
International Mass Tort Litigation
 Questions:
 Is Judge Scheindlin’s class certification of the
Kaprun fire victims a good decision?
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Was her decision a sound application of the class
action rule?
What do you think about her decision to certify an
opt-in class? Why did she do this?
 Was Judge Scheindlin’s class certification
decision upheld on appeal?
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Is the appellate court’s decision sounder than
Judge Scheindlin’s?
What are the implications of the appellate decision
for the class members and victims of the fire
disaster?
International Mass Tort Litigation
 Kern v. Siemens Corp., 393 Fd.3 120 (2d Cir. Dec.
2004)(Appellate Court Decision):
 Defendants’ appeal of class certification – four
challenges:
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Rule 23 does not permit opt-in provision
“all heirs, beneficiaries and personal
representatives” is unmanageable class requriring
individual inquiries
Question use of class action in mass accident
Court erred in certifying class with fraud and
emotional distress claims (require individual
determination)
International Mass Tort Litigation
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Kern v. Siemens (2004):
Court reverses class certification
Only addresses opt-in provision
Rule 23(c) does not permit class certification of
opt-out class during liability phase
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Language of Rule 23 does not provide or permit
opt-in procedure
Substantial legal authority supports view that
providing for opt-out, Congress intended to
prohibit opt-in procedure
Historical materials by Committee Reporter
indicate consideration and rejection of opt-in
procedure
International Mass Tort Litigation
 Kern v. Siemens (2004):
 Rule 23(c) does not permit class certification of
opt-out class during liability phase:
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No federal court has certified opt-in procedure
Would be contrary to interests of claimants in
small claims class actions
Courts hesitant to require opt-in during liability
phase
Opt-in type procedures (claims forms) possible
during damage phase
Fair Labor Standards Act opt-in procedure
narrowly applies only to labor cases under statute
No equitable powers of judge to authorize opt-in
procedure
International Mass Tort Litigation
 Final Questions:
 Does the Second Circuit’s decision in Kern make
sense?
 Could the Kaprun Ski Fire case have been
certified as a class action if the judge had not
provided for the controversial opt-in provision?
 Is the Kaprun Ski Fire case the type of situation
where an American court should take jurisdiction
and resolve the mass accident through the class
action litigation?
 Given the large numbers of non-American
victims, should this matter have been handled in
a foreign forum, such as Austria?
Fine