Since it's the end of the year, it's worth taking a look back at what were the most significant class-action decisions of 2010. What do I mean by significant? A significant case does not have to be well-reasoned, or pro-defense, just one that will have an effect on class-action practice. Some of these are not cases I wrote about, either because I was conflicted out of doing so, or someone else got there first and said what I would have said. Also, the decision itself had to be a significant one, which is why Concepcion v. AT&T (which is important primarily because the Supreme Court has decided to review it) is not on the list this year. It will almost certainly qualify in 2011. This year, the cases are, in no particular order:
- Morrison v. Australian National Bank (S. Ct.) -- Before the Supreme Court's opinion, it was unclear whether a plaintiff with no connection to the United States could still bring a class action in a US court. Now, this burgeoning and lucrative sideline of cases is likely extinct.
- Shady Grove Orthopedic Assocs. v. Allstate Ins. Co. (S. Ct.) -- In this case, the Supreme Court decided a comparatively narrow question: do state statutory class-action bans trump Rule 23? Nonetheless, the strong language the Court used in deciding Rule 23 wins out over state statute--in particular its analysis of the Rules Enabling Act--has broader applications.
- Dukes v. Wal-Mart Inc. (9th Cir.) -- In affirming certification of a large, diverse class of women who claim to have suffered sex discrimination, the Ninth Circuit placed itself at the center of a number of debates about class-action procedure. The popular characterization that the class was "too big to certify," while technically inaccurate, does capture a number of the criticisms of the Ninth Circuit's opinion. And the decision also prompted a strong academic response. Now that the Supreme Court has granted certiorari, this case will likely also be one of the most significant decisions of 2011.
- Cappuccitti v DirecTV (11th Cir.) -- When a panel of the Eleventh Circuit originally held that at least one class-action plaintiff must assert a claim exceeding $75,000 even for removal under the Class Action Fairness Act, both plaintiffs and defendants scratched their heads. The panel quickly corrected itself, but the case is still significant for two reasons: (1) it completely clarified CAFA's reach, and (2) it strengthened the legitimacy of the federal courts in ruling on class-action issues.
- In re Mercury Interactive Corp. (9th Cir.) -- Objectors play an important role in keeping class settlements honest. As a result, they are often viewed as an obstacle by plaintiffs, defendants, and courts that are trying to clear a complex case off a court's docket. The Ninth Circuit's opinion in this case confirmed that Rule 23(h), which allows for a right of objection, has teeth, and may not be abrogated by scheduling a hearing to preclude knowledgeable objections.
- In re Gilden Activewear Securities Litigation (S.D.N.Y.) Judge Baer's order requiring that class counsel field a racially and sexually diverse litigation team drew strong criticism from a number of circles, but also took plaintiffs' claims to litigate on behalf of the public to their logical conclusion. While Judge Baer found counsel adequate in this case, he has opened a new debate on what it means to be "adequate class counsel."
- American Honda Motor Company, Inc. v Allen (7th Cir.) -- Courts have occasionally certified classes based on unreliable expert testimony because they were reluctant to rule on the merits of an expert's opinion before trial. The Seventh Circuit's holding that "when an expert's report or testimony is critical to class certification ... a district court must conclusively rule on any challenge to the expert's qualifications or submissions prior to ruling on a class certification motion" should help to put an end to that practice.
- UFCW Local 1776 v. Eli Lilly & Co. (2d Cir.) -- One of the largest problems plaintiffs face in bringing class actions is demonstrating that they can resolve complex issues of causation on a classwide basis. Sometimes plaintiffs attempt creative workarounds when they cannot prove causation on a classwide basis, such as arguing fraud on the market, "excess price theory," or "quantity effect theory." The Second Circuit held that plaintiffs cannot take shortcuts in demonstrating causation.
- Avritt v. Reliastar Life Ins. (8th Cir.) -- In order to avoid the problems reliance can cause for proving fraud claims on a classwide basis, a number of plaintiffs have begun asserting fraud claims as breach-of-contract claims instead, citing the duty of good faith and fair dealing. The Eighth Circuit's opinion here effectively breaks down this new tactic and shows why it does not avoid the individualized issues at the heart of a fraud-related case.
- Thorogood v Sears Roebuck & Co. (7th Cir.) - A plaintiffs' lawyer I know called this one of the "greatest self-inflicted wounds" in the plaintiffs' bar. The Eighth Circuit had laid out may of the same points in its Baycol opinion, but Judge Posner's opinion here leaves little doubt as to when a defendant may use the All Writs Act to block copycat class actions.
Coming up on Thursday, the 10 Most Interesting Class-Action Articles of 2010.