Is it possible to have multiple class action lawsuits for the same problem?

Question

Can multiple class action lawsuits can be filed against the same defendant for the same issue?

(and if the answer is "yes", the bonus question is, how does that work? Do potential class members have to choose which of the plaintiffs' suits to join?)

Answer 1

Can multiple class action lawsuits can be filed against the same defendant for the same issue?

Yes.

Generally what happens in that the multiple lawsuits are consolidated. The process by which this is handled varies. Often, there is a multi-district consolidation tribunal somewhere in a particular court system that handles the matter.

Often, once the lawsuits are consolidated, a single team of lawyers (frequently the first to file) will be assigned to represent the Plaintiffs in all of the consolidated lawsuits.

But the details are quite case specific and the procedures vary quite a bit between the federal court system and the various state court systems. It is a highly technical and "advanced" civil procedure issue.

In Colorado, for example, this is handled by a special tribunal that is part of the state supreme court from a organizational chart perspective, which has lower court judges who sit together with a supreme court justice, and has a whole set of procedural rules just for these cases for the briefing and arguing of these cases on a highly expedited basis.

The federal system has a panel on multi-district litigation that handles it, which is basically its own separate meta-court.

After the cases are consolidated, a single judge from a trial court of general jurisdiction is assigned to handle the consolidated cases.

In contrast, a different process applies (in each case) when all of the cases to be consolidated are in the same U.S. District Court at the federal level, or in the same county or judicial district at a state level. In those circumstances, a judge in one of the cases to be consolidated (or the chief judge of that court) orders the cases consolidated and assigns them to a single judge (often the judge to whom the first filed case was assigned), without resort to a separate tribunal under an ordinary rule of civil procedure.

Answer 2

canada

The approach in Canada is distinct enough from the US approach to warrant a separate answer for a comparative view.

In Canada, competing proposed class actions are resolved through what are known as "carriage motions" (within a jurisdiction) and applications to stay (across jurisdictions).

"Carriage" determines which representative plaintiff(s) get to proceed with their proposed class action and which actions are temporarily stayed while that first one proceeds.

One contentious carriage motion can be seen in Kowalyshyn v Valeant Pharmaceuticals International, Inc., 2016 ONSC 3819. The judge described the proposed actions:

The carriage motion is a fierce battle between two proposed class actions under Ontario’s Class Proceedings Act, 1992, S.O. 1992, c. 6; namely: Joyce Kowalyshyn v. Valeant Pharmaceuticals International, Inc. and Lorraine O’Brien v. Valeant Pharmaceuticals International, Inc.

Catucci c. Valeant Pharmaceuticals International, inc., a proposed class action in Québec under the Code of Civil Procedure, C.Q.L.R. c. C-25, and Mirza Alladina v. Valeant Pharmaceuticals International, Inc. and Randy Okeley v. Valeant Pharmaceuticals International, Inc., two proposed class actions in British Columbia under the Class Proceedings Act, R.S.B.C. 1996, c. 50, are part of the carriage fracas.

The class definitions differed:

	Kowalyshyn Action	O'Brien Action	Catucci Action
All purchasers of Valeant securities (shares, notes) from Canadian secondary market	*	*	*
All purchasers of Valeant securities from foreign secondary market (other than United States)		*	*
Resident Canadians purchasing Valeant securities inside Canada from Canadian primary or secondary market	*	*	*
Resident Canadians purchasing Valeant securities outside Canada	*	*	*
Primary market purchasers wherever they may reside of Valeant securities		*	*

The judge identified sixteen factors to consider when determining which action would proceed:

(1) The Quality of the Proposed Representative Plaintiffs

(2) Funding

(3) Fee and Consortium Agreements

(4) The Quality of Proposed Class Counsel

(5) Disqualifying Conflicts of Interest

(6) Preparation and Readiness of the Action

(7) Relative Priority of Commencement of the Action

(8) Case Theory

(9) Scope of Causes of Action

(10) Selection of Defendants

(11) Correlation of Plaintiffs and Defendants

(12) Class Definition

(13) Class Period

(14) Prospect of Success: (Leave and) Certification

(15) Prospect of Success against the Defendants

(16) Interrelationship of Class Actions in More than one Jurisdiction

A particularly thorny factor was the "interrelationship of class actions in more than one jurisdiction." He noted that "purely local" class actions are rare:

The rarity of purely local class actions and the prevalence of multiple class actions in more than one jurisdiction can be explained by a combination of: (a) the defendant not being local or the defendant’s wrongdoing extending beyond the boundaries of the local province and harming non-local claimants; (b) provincial parochialism, in which a court is reluctant to have another province’s court provide access to justice for its citizens or to provide access to justice for foreigners; (c) Canadian constitutional law obstacles to consolidating proceedings in multiple jurisdictions; (d) law firm competition for remunerative national class actions; (e) the economics of the particular class action requiring a larger than locally constituted class; and (f) there being valid reasons for the existence of more than one class action in several provinces even when the class actions have the same class counsel.

Importantly:

there is no constitutional mechanism to bring together actions commenced in different jurisdictions and because, unlike choosing in a carriage motion among purely local actions, for there to be a reduction in the number of proceedings, there must be a stay motion and one or more courts must forgo having any action in their own jurisdiction.

In order to eliminate concurrent proceedings across jurisdictions, a party would have to apply in the other jurisdictions to stay the class action in that jurisdiction.

In the context of the immediate carriage motion, where this analysis takes me is that this factor favours Ms. Kowalyshyn, who should be granted carriage, leaving it open to Mr. Catucci and the Defendants to bring a stay motion in Ontario if they are so advised. If Ms. Kowalyshyn wants to protect the national scope of her action, she would have to bring a stay motion in Québec.