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Class Action Countermeasures Discussions of the Strategic Considerations Involved In Class Action Defense

Notes from DePaul Class Action Symposium

Posted in Certification, Strategy

A few weeks ago, I had the distinct pleasure of participating in the DePaul Law Review’s 22d Annual Symposium: Class Action Rollback? Wal-Mart v. Dukes and the Future of Class Action Litigation. The Law Review staff assembled an impressive array of speakers, all thoughtful, all interesting, only one of whom spoke too fast.  As is my wont, I took a lot of notes, and here’s a quick summary of them.

Oddball Cases. The opening presentation, by Professor Suja Thomas, focused on the Supreme Court’s alleged predilection for deciding "oddball" cases, which Professor Thomas thinks make for less-than-ideal outcomes. What is an oddball case? It’s one with (1) odd facts that creates (2) a significant change in the law, where the change is (3) motivated by the odd facts rather than the legal principles, and has (4) a significant effect on less-oddball cases in the same area of law. According to Professor Thomas, Dukes is an oddball case (mainly because of the expansiveness of the class), while something like Citizens United is not. Professor Thomas believes that, in oddball cases, the Court should leave any real rule making to Congress, and decide the case on as narrow grounds as possible.

Defending Dukes. Mark Perry (one of the defense counsel in Dukes) provided a one-hour deep dive into the strategy behind the Dukes defense, and the law governing class action defense in general. I don’t say this often, but this was the presentation I wish I could have given. Mark’s presentation was both comprehensive and comprehensible. He covered everything from the basics of Rule 23 to how to use the often-overlooked Taylor v. Sturgell in a class certification opposition. The biggest takeaway though, was that–by reiterating the need for a rigorous certification inquiry–Dukes has shifted the cost of class-action litigation forward, a development that will have clear implications for strategy on both sides.

The "New Rules" of Civil Procedure panel. We’ll leave out one of the panelists here, and focus on what the others had to say. Professor WIlliam Hubbard wondered if, as a matter of economics, the class action can get too large to certify. Professor Wendy Netter Epstein argued that the Dukes ruling may unravel a number of verdicts and settlements reached under Rule 23(b)(2) in the last few years. And Professor Marcia McCormick looked at the kind of social science evidence that might be allowable post-Dukes. The biggest takeaway from the panel for defense counsel was Professor Epstein’s warning about the finality of pre-Dukes judgments: this kind of unraveling has happened before, and it can happen again.

The Power and Promise of Procedure. This was the keynote speech, given by Professor Suzette Malveaux. Professor Malveaux focused on the class action’s ability to afford access to justice. Admitting that she was "surprised" by the Court’s unanimous ruling on the Rule 23(b)(2) issue, she worried that requiring plaintiffs to bring damages actions under Rule 23(b)(3) would reduce the ability of discrimination plaintiffs to bring lawsuits. She also predicted that plaintiffs’ counsel would focus on smaller class actions with a tighter nexus to discriminatory conduct, more state court filings, and (like Mark Perry) more pre-certification discovery. Professor Malveaux offers a strong case for a plaintiff-oriented rhetorical theme: class action exist to balance the scales for small plaintiffs. While she and I continue to (congenially) disagree on the scope of Rule 23, her keynote provided an excellent reminder that defendants must take this rhetoric seriously.

Employer/Employee Panel. This panel largely focused on Dukes’s effect on labor law. As a result, it tended to take a narrow view of Rule 23. (In fact, two of the panelists really didn’t discuss Rule 23 at all.) Nonetheless, it provided a number of interesting ideas. Professor Leslie Wexler argued that, in the wake of the Dukes litigation, Wal-Mart has engaged in a "genderwashing" campaign–providing possibly insincere reforms aimed at scrubbing its public image on these issues (not, she pointed out, that this was necessarily a bad thing). Professor Steven Greenberger probed the possible effects of relying too much on a decentralized, subjective human resources policy. And Bigelow Fellow Naomi Schoenbaum probed further into the potentially discriminatory effects of Wal-Mart’s relocation policy, a small but often-overlooked part of the larger Dukes case. The biggest takeaway for defense counsel grows out of Professor Wexler’s "genderwashing" discussion, since "genderwashing" sounds an awful lot like the kind of prophylactic "firewall" defenses recommended in Verdict for the Defense.

Dukes in Litigation Panel. And, finally, there was the practitioner’s panel. There was one defense counsel, who relied on the cheap gimmick of a top ten list.  But Anthony Fata offered an excellent, wide-ranging presentation that argued that Dukes was not nearly as anti-plaintiff as one might think, particularly if one embraced the "rigorous analysis" standard. And George S. Robot told the behind-the-scenes story of the fresh-off-the-press McReynolds v. Merrill Lynch. The biggest defense takeaway from this panel–which came from both plaintiff panelists–was the reminder not to be complacent: smart plaintiff’s counsel are already making the Dukes opinion work for them.

One final note as I look over my notes: with the exception of the practitioners’ panel, where everyone said "Dukes," you could usually predict the scholar’s attitude towards the Supreme Court’s opinion by whether they called it "Dukes" or "Wal-Mart." I have no explanation for this phenomenon, but it struck me as an interesting bit of applied rhetoric.

[Many thanks to Chris Burrichter and the rest of the Law Review staff, who put together an amazing set of panels, and made sure everything ran smoothly.]