In connection with its "Legal Reform Summit" last week, the U.S. Chamber of Commerce's Institute for Legal Reform issued a new paper written by John Beisner and his colleagues at Skadden Arps with new proposals for legislation to limit class actions and expand federal jurisdiction over both class actions and individual actions. Entitled A Roadmap for Reform: Lessons from Eight Years of the Class Action Fairness Act, the paper provides a corporate wish-list for legislation to expand the Class Action Fairness Act (CAFA), as well as legal analysis intended to support these proposals for further "reform." In light of John's success in helping to shape both the debate over CAFA and the terms of the law, his thoughts about next steps in pursuing the corporate agenda of limiting litigation are well worth examining.
One striking thing about the paper is that it seemingly treats any issue a defendant has lost under CAFA as a potential subject for legislation to close "loopholes" in CAFA, even if the issue has only been the subject of one or two judicial decisions. But the paper also advances some ideas that are far-reaching and well beyond CAFA's current scope, such as the complete elimination of cy pres awards, the prohibition of "issue classes," and the expansion of federal diversity jurisdiction to include even non-class actions if they are related to a Multi-District Litigation (MDL) proceeding pending in the federal courts.