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

Due Process and Class Action Defense

Posted in Strategy

 Defendants often argue that limiting the evidence they can produce in a class action violates their rights to due process. It’s an argument we take very seriously, but since it’s usually not the centerpiece of the argument, many defense arguments mention the concept briefly and then move on to the intricacies of Rule 23 or rebutting the plaintiff’s particularly careless allegations.

DePaul Law professor Mark Moller has written an article for the Utah Law Review, "Class Action Defendants’ New Lochnerism," that looks to investigate the due process argument defendants usually advance. [Disclosure, Professor Moller and I were in law school together.] Professor Moller comes at the question as a self-proclaimed "new originalist," presumably meaning that he roughly follows some of Justice Scalia’s dictates about originalism. And his perspective is a tough one for defendants:

What are originalists to make of class action defendants’ due process arguments? This Article is the first to examine the historical record with that question in mind. And, for class action defendants, the verdict is a bad one.

That’s not to say there is no historical support for class action defendants’ arguments. There is. But it is found in an awkward period: the Lochner era.

Professor Moller’s article dives deep into the history behind the argument that due process requires everyone to have their day in court on every claim. His conclusion is that the argument really stems from the Lochner line of cases, which were widely discredited by the 1970s.

How bad is this news for defendants? Not necessarily all that bad, even assuming his analysis is completely correct. For one thing, few defendants rely solely on the due process argument. Instead, they point out that this version of due process seems to underpin much of the case law surrounding Rule 23. For another, there is no guarantee that one’s judge is an originalist. And finally, as Professor Moller himself suggests, there are a number of other bases for the "day in court" argument that defendants advance (among them the basis of Rule 23, the Supreme Court’s continued assurance that procedural rules cannot change substantive rights, and the Seventh Amendment).

But Professor Moller’s article, by taking such a deep dive into the legal history of the "day in court" due process argument, does serve as an important reminder. Most class action lawyers do not consider ourselves constitutional scholars. But there is no question that class actions have a constitutional dimension to them. So it behooves us to make sure that we understand the constitutional dimensions of our arguments, particularly at a time when the Supreme Court is hearing so many class-action related cases.