Class Action Countermeasures
The Ten Most Significant Cases of 2012
It's been almost a month since I posted, for which you have my apologies. At the beginning of the month, I experienced some technical difficulties linked to my newfound role as a dad (my daughter decided my laptop keyboard looked thirsty), and towards the end, some other responsibilities got in the way. However, I'm back, and should be on schedule.
Which means, first of all, that it's time to review the 10 most significant class-action cases of 2012. Finding "significant" cases was difficult this year, because much of the real action in making class action law was occurring in the Supreme Court's certiorari pool. As a result, 2013 should include several very interesting opinions. And, perhaps in preparation, most appellate and district courts did not issue opinions that changed the contours of the class-action debate much. (One notable exception, as you'll see from the list, is the Seventh Circuit's Judge Posner.)
And so, in alphabetical order:
- Boeynaems v. L.A. Fitness Int'l, LLC (E.D. Pa. Aug. 16, 2012)  - The Eastern District of Pennsylvania took the extraordinary step of actually imposing discovery costs on plaintiffs for class-action discovery. In doing so, it provided a road map for future defendants to limit costs when plaintiffs go on fishing expeditions to justify spurious class theories.
- Butler v. Sears Roebuck & Co. (7th Cir. 2012). In a Judge Posner opinion, a Seventh Circuit panel affirms certification of a six-state breach-of-warranty class action. The panel took the case under Rule 23(f) in order to "clarify" the predominance standard, and, in doing so, bases it primarily on efficiency and ties it closely to the superiority standard of Rule 23(b)(3). Whether this formulation of predominance survives is anyone's guess, but there is no question that plaintiffs will be citing it in class certification briefs.
- Compucredit Corp. v. Greenwood (2012). - The Supreme Court held that the Federal Arbitration Act cannot be supplanted by a federal statute that specifically says a class action is available to the plaintiffs. It's a common-sense ruling that puts to rest a possible argument against valid arbitration clauses.
- Dewey v. Volkswagen Aktiengesellschaft (3d Cir 2012) This Third Circuit opinion does an excellent job of showing how an intra-class conflict can arise, and why it is important to continually monitor whether named plaintiffs are meeting their fiduciary duties.
- Johnson v. Meriter Health Servs. Emp. Ret. Plan, (7th Cir. Dec. 4, 2012). In another Judge Posner opinion, the Seventh Circuit affirms certification of an ERISA class that seeks, among other things, monetary damages. And, in doing so, the panel explains how plaintiffs may still seek monetary damages under Rule 23(b)(2) after Dukes. Consider this a companion case to McReynolds.
- McReynolds v. Merrill Lynch, Pierce Fenner & Smith (7th Cir. 2012). While it's not likely that every court will engage in issue certification, there is no question that Judge Posner's opinion shows how it can be done. (More here.)
- MD v Perry (5th Cir 2012). Provides a good explanation of the "cohesiveness" requirement for Rule 23(b)(2), and how that fits in with the commonality requirement of Rule 23(a)(2).
- M.R. v. Bd. of School Comm'ners of Mobile Cty., (S.D. Ala. Oct. 29, 2012) - This school reform case provides a good articulation of the "necessity" requirement for Rule 23(b)(2), which, coupled with the cohesiveness requirement, adds some analytical grounding to Rule 23(b)(2).
- Pieloor v. Gate City Bank, 2012 U.S. Dist. LEXIS 148702 (D.N.D. Oct. 15, 2012) - This thoughtful opinion by the District of North Dakota offers a way of testing bad factual theories before going into full-fledged discovery, by bifurcating the case into the test of the weak theory first.
- Ross v. RBS Citizens, N.A. (7th Cir 2012). This Seventh Circuit opinion provides a good reminder of the requirements of Rule 23(c)(1)(B), which can help defendants to remind the court of the difficulty of certifying a class without asking the necessarily difficult questions about how the case will actually be tried.
Honorable mention - Mazza v. American Honda, 666 F.3d 581 (9th Cir. 2012). For anyone outside the Ninth Circuit (or really, California), this opinion seemed largely inconsequential--most circuits had already ruled that you couldn't simply apply one state's law to a nationwide class to make it certifiable. But I've spoken to a number of California lawyers--plaintiff and defense--who considered this ruling to be a bombshell.
Tomorrow - the ten most interesting pieces of class action scholarship in 2012.