Seyfarth Synopsis: On an annual basis 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 2020-2021 Report was recently published – a copy is here and the executive summary is 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 2020 Hellholes
In its recently released annual report, the ATRA identified 9 jurisdictions on its 2020 hellholes list – which, in order, include: (1) Philadelphia (especially in the Philadelphia Court of Common Pleas regarding product liability mass tort cases and lawsuits targeting medications and medical devices), (2) New York City (particularly regarding Americans With Disabilities Act accessibility claims and consumer lawsuits against the food and beverage industry), (3) California (with the plaintiffs’ bar taking advantage of unique California laws like the Private Attorney General Act and the California Consumer Protection Act), (4) South Carolina (with regard to asbestos litigation – a new Hellhole for 2020), (5) Louisiana, (6) Georgia, (7) City of St. Louis, Missouri (with typically large punitive damages awards), (8) Illinois (especially Cook, St. Clair, and Madison counties and regarding asbestos litigation and Illinois Biometric Information Privacy Act class actions), and (9) the Twin Cities, Minnesota (particularly the Minnesota Supreme Court with several recent liability-expanding decisions).
According to the ATRA’s analysis, these venues are less than optimal for corporate defendants and often attract plaintiffs’ attorneys, particularly for the filing of 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 Florida (though the ATRA noted that Florida, previously number one on past judicial hellholes lists, has been making strides to improve its liability climate), Oklahoma (a newcomer to the watch list last year, however has been less active in 2020 due to the COVID-19 pandemic), New Jersey, Colorado, Maryland, West Virginia (regarding its Supreme Court of Appeals), and Montana (particularly the Montana Supreme Court).
In addition, the ATRA recognized the all-encompassing impact that the COVID-19 pandemic had on the legal system in 2020. The ATRA cited the pervasiveness of lawsuits regarding executive orders and legislative protections due to the pandemic and noted that thousands of lawsuits have already been filed.
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.