By Gerald L. Maatman, Jr., Andrew D. Welker, and Alex S. Oxyer

Seyfarth Synopsis: Every year the American Tort Reform Association (“ATRA”) publishes its “Judicial Hellholes Report.” The Report focuses on litigation issues in state court systems and challenges for corporate defendants in the fair and unbiased administration of justice. The ATRA’s 2019-2020 Report was recently published; find a copy here and the executive summary here.

The Judicial Hellholes Report is an important read for corporate counsel facing class action litigation because it identifies jurisdictions that are generally disadvantageous to defendants. The Report defines a “judicial hellhole” as a jurisdiction where judges in civil cases systematically apply laws and procedures in an unfair and unbalanced manner, generally to the disadvantage of defendants. The Report is a “must read” for anyone litigating class actions and making decisions about venue strategy.

The 2019 Hellholes

In its recently released annual report, the ATRA identified 10 jurisdictions on its 2019 hellholes list – which, in order, include: (1) Philadelphia (especially in the Philadelphia Court of Common Pleas regarding product liability mass tort cases and asbestos litigation), (2) California, (3) New York City (particularly regarding Americans With Disabilities Act accessibility claims and consumer lawsuits against the food and beverage industry), (4) Louisiana, (5) St. Louis, Missouri, (6) Georgia, (7) Illinois (especially Cook, St. Clair, and Madison counties and regarding asbestos litigation and Illinois Biometric Information Privacy Act lawsuits), (8) Oklahoma, (9) the Twin Cities, Minnesota (particularly the Minnesota Supreme Court with several recent liability-expanding decisions), and (10) New Jersey. According to the ATRA’s analysis, these venues are less than optimal for corporate defendants and often attract plaintiffs’ attorneys, particularly for filing class action lawsuits.  Therefore, corporate counsel should take particular care if they encounter a class action lawsuit filed in one of these venues.

The 2020 “Watch List”

The ATRA also included 7 jurisdictions on its “watch list,” including Colorado (principally the Colorado Supreme Court and Court of Appeals), Florida (though the ATRA noted that Florida, previously number one on past judicial hellholes lists, has been making strides to improve its liability climate), Maryland, Montana (particularly the Montana Supreme Court), Pennsylvania (especially the Pennsylvania Supreme Court), South Carolina (especially in asbestos litigation), and West Virginia (regarding its Supreme Court of Appeals).

In addition, the ATRA recognized that privacy and security class actions are poised to become a “feeding frenzy” for plaintiffs’ lawyers.  The ATRA cited the pervasiveness of lawsuits under the Illinois Biometric Information Privacy Act as a “stark warning” for how these types of privacy lawsuits are likely to expand at the national level and the impact those lawsuits will have on legitimate businesses (we have previously discussed the rise in BIPA lawsuits and the onset of other biometric privacy legislation here). The Report also noted an escalation of lawsuits filed under the Telephone Consumer Protection Act (TCPA), with more than 2,500 TCPA suits filed this year alone.

Implications For Employers

The Judicial Hellholes Report dovetails with the experience of employers in high-stakes workplace class actions, as California, Missouri, New York, Pennsylvania, New Jersey, Illinois, Louisiana, and Florida are among the leading states where Plaintiffs’ lawyers file employment discrimination and wage & hour class actions. Many of these jurisdictions are also becoming a hotbed for privacy and accessibility-related lawsuits. These jurisdictions are linked by class certification standards that are more plaintiff-friendly and by generous damages recovery possibilities under state laws.