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Finally, the definition of class action in the legislation could be interpreted to pull in a number of cases that have not traditionally been considered class actions and that have not been identified as a problem. For example, as currently written, S. 1260 might prevent state actions by individual trustees, guardians, and others with custodial relationships. (18) S. 1260's reference to "groups of lawsuits" also raises questions about whether the legislation's preemption would apply if a number of individuals brought separate lawsuits in the same state court. These problems could be fairly easily resolved by changing the definition of class action in the legislation to refer to the definition of class action in federal and state rules of civil procedure. The rules of civil procedure are based on years of experience in determining when it is appropriate for an action to proceed as a class action. Congress should not muddy the water by identifying a new definition of class actions solely for the purpose of cases involving exchange-traded securities.
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