UK: Significant Rulings Expected For Ongoing Mass Tort, Consumer Class Action Issues

In 2019, significant developments are expected on issues that have been percolating in the mass tort and class action litigation arena for several years. The U.S. Supreme Court is expected to rule on cases relating to arbitration, cy pres, preemption and personal jurisdiction, and resolve such questions as whether a contract that is silent on class or collective arbitration still allows it.

On the litigation reform front, efforts to combat abuses in class action and multidistrict litigation (MDL) practices may stall under the now Democrat-controlled House of Representatives, and the changes that had been implemented over the last couple of years may even be reversed.

Arbitration. A case currently before the Supreme Court, Lamps Plus, Inc. v. Varela, raises an issue that has greatly divided the lower courts for years: whether a contract that does not mention class or collective arbitration nevertheless authorizes it. The Court has decided numerous cases involving classwide arbitration issues in recent years, including in 2011 when it ruled in AT&T Mobility LLC v. Concepcion that the Federal Arbitration Act preempts state laws that condition the enforceability of arbitration clauses on the availability of classwide arbitration. Additionally, in May 2018, in Epic Systems Corp. v Lewis, the Court rejected the argument that class action arbitration waivers should not be enforced because they deny employees the opportunity to collectively litigate disputes in violation of their right to engage in "concerted activities" under the National Labor Relations Act. Even if the Court agrees with the U.S. Court of Appeals for the Ninth Circuit that the agreements involved in Lamps Plus can be construed as authorizing classwide arbitration under state contract law, that ruling may have limited practical implications given the growing prevalence of explicit class action waiver clauses in arbitration agreements, which the Court has repeatedly affirmed as enforceable.

Cy Pres. In 2013, the Supreme Court declined to take up a challenge to a class action settlement utilizing cy pres — the practice of distributing unclaimed class action funds to third-party charities. Although the Court denied the petition for certiorari in that case (Marek v. Lane), Chief Justice John Roberts issued an unusual statement stressing that cy pres is a "growing feature" of class action settlements and that "in a suitable case, this court may need to clarify the limits on the use of" that practice. In 2019, the Supreme Court is poised to do just that in In re Google Referrer Header Privacy Litigation, a case involving an $8.5 million settlement arising from alleged privacy violations by Google. Apart from attorneys' fees, the money in the settlement fund is to be distributed to six charities — five of which were the favored charities of Google, class counsel or both. The Ninth Circuit affirmed the class settlement, holding that it would not have been economically feasible to distribute any money to the millions of class members. While it is difficult to predict how the Supreme Court will rule, the questioning and statements from the justices at the October 2018 argument suggest that the Court might impose some limits on the cy pres doctrine. That said, the case may not reach the merits of the cy pres arguments because the Court ultimately may decide that the named plaintiff does not have standing.

Preemption. The Supreme Court is slated to clarify the standard set forth in the 2009 decision Wyeth v. Levine that pharmaceutical companies cannot be sued for failure to warn when there is "clear evidence" the Food and Drug Administration (FDA) would have rejected the plaintiff's proposed warning. In Merck Sharp & Dohme Corp. v. Albrecht, the plaintiffs alleged that the Fosamax warning label should have included a notice about the risk of atypical femoral fractures. Merck countered that it tried to add language addressing the risk but was prevented from doing so by the FDA, which stated that the justification for such language was "inadequate." The district court granted summary judgment to Merck on these facts, finding that the failure-to-warn claims were preempted under Levine because the "clear evidence" standard demonstrated that the FDA would not — and did not — approve of the proposed label change. The U.S. Court of Appeals for the Third Circuit reversed, holding that Merck had not demonstrated that the FDA would have rejected a "properly worded" warning, which was a question for the jury. The Supreme Court not only granted certiorari but also invited the solicitor general to weigh in on the case; the solicitor general sided with Merck in arguing that preemption should be decided by a judge, not a jury. While a win for Merck (and, by extension, pharmaceutical companies across the country) is by no means a foregone conclusion, the Supreme Court's recent preemption jurisprudence suggests that the Third Circuit's ruling is in doubt.

Personal Jurisdiction. In its landmark 2017 ruling in Bristol-Myers Squibb Co. v. Superior Court of California (BMS), the Supreme Court held that state courts presiding over nationwide mass tort actions lack personal jurisdiction over out-of-state defendants as to claims plaintiffs brought in a different state — even when those claims are substantially similar to those of in-state plaintiffs in the same proceeding. Since then, most courts have put an end to nationwide mass actions where plaintiffs have no connection to the forum state. However, a handful of state courts in Missouri and Pennsylvania have exercised jurisdiction over out-of-state manufacturers based on their use of entities in the forum state to help introduce a product into the stream of commerce. Another recurring issue in the wake of BMS is whether the Supreme Court's ruling applies to class actions and, if so, whether nationwide class actions can be brought against a defendant in a forum other than where the defendant is subject to general jurisdiction — i.e., its principal place of business or state of incorporation. So far, federal district courts have been divided on this fundamental question, and it looks like the U.S. Court of Appeals for the District of Columbia Circuit will be the first federal circuit court to delve into the debate, after the district court certified for interlocutory appeal its prior ruling refusing to apply BMS to absent class members in Molock v. Whole Foods Market, Inc.

Litigation Reform Efforts. The past couple of years provided litigation reform advocates with a glimmer of hope that there would be changes to curtail what they viewed as abusive class action and MDL practices. Most notably, the House of Representatives passed the Fairness in Class Action Litigation and Furthering Asbestos Claim Transparency Act of 2017 (FICALA), which addressed a number of issues, including no-injury class actions, discovery practices and undisclosed third-party funding. The Senate ultimately declined to take up FICALA, and its fate is likely moribund with the end of the 115th Congress. And with Democrats now in control of the House, it is unlikely that reform packages like FICALA will see the light of day in 2019. Indeed, the House could even bring to the floor proposals that would make it easier to certify class actions or weaken prior reforms that have expanded federal jurisdiction over interstate class actions. As a result, the most likely avenue for legal reform in the upcoming year is the Advisory Committee on Civil Rules, an arm of the federal judiciary that is actively investigating alleged abuses in MDL proceedings and the prevalence of third-party litigation funding.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions