Companies in a variety of sectors may face repetitive litigation, which involves a number of cases, in multiple jurisdictions, arising out of a common factual core or common liability theories. These cases often feature common corporate documents, issues, and witnesses. Matters that are the subject of repetitive litigation may include product defect cases, general or premises liability matters, claims alleging negligent provision of services, claims for consumer fraud or violation of consumer protection statutes, or claims asserting other common law or statutory-based challenges to a company’s business practices. This type of litigation differs from mass tort actions involving a single product or catastrophic occurrence in that the nature of the alleged product defect, manner of injury, or other factual circumstances giving rise to repetitive claims typically are case-specific and the cases are not aggregated.
While the damages in each individual case may be less than the potential damages associated with mass tort claims, the decentralized nature of repetitive litigation presents inherent challenges and risks that can be costly. Plaintiff’s counsel will frequently bolster unfounded claims and increase the value of low-damage claims by exploiting inconsistencies in a company’s discovery responses, positions, or testimony in other similar cases, and may publicize decisions adverse to the company. The proliferation of communication technology, the use of social media, and the increased communication and collaboration within the 21st century plaintiff’s bar have magnified these risks.