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

An Out-of-Date Tour of the “New Class Action Landscape”

Posted in Certification

In years past, when I was a budding class-action nerd at O’Melveny & Myers, I used to look forward to the ABA’s annual convention on class actions. While I couldn’t go myself (not cost-justified for baby lawyers), John Beisner would always come back and circulate Professor John Coffee’s Five-Year Reviews of class action law. I learned a lot about Rule 23 that way–not just the doctrine, but the way that the lawyers were actually using the Rule. Those five-year reviews were an essential guidebook for me as I made my way in an area of law that often seemed like a foreign country.

Fast-forward a few years, and, for various reasons, I haven’t felt the same urgency about keeping up with Professor Coffee’s reviews. And that was why I was delighted to read fellow blogger Paul Karlsgodt’s post linking to the latest one.  I immediately downloaded the new survey (The New Class Action Landscape: Trends & Developments in Class Certification & Related Topics), transferred it to my trust iPad, and sat back to get a guided tour through a country I visit quite often, but from a skilled tour guide.

This year, Professor Coffee was joined by Professor Alexandra Lahav. Unfortunately, the result was far less than ideal. In fact, reading this survey was like joining a tour where the guides spent a great deal of time vaguely lost and telling me what used to be in various locations, while occasionally missing the really great sights they were standing in front of.

Specifically, there were several disturbing issues with this survey of the "New" Class Action Landscape:

  • Lots of things in it are hardly "new". Professors Coffee and Lahav spend significant time, for example, in their adequacy discussion focusing on Berger v. Compaq Computer Corp. (82-84), and Judge Posner’s opinion in Culver v. City of Milwaukee (97-98).  Neither of these are poor opinions, but both are more more than ten years old: there are law firm partners who have practiced their entire career with these precedents. And Judge Posner alone has produced a host of significant cases about the adequacy requirement since then that the survey simply doesn’t mention. Placed next to these old chestnuts, some of the survey’s omissions are mystifying: why cite the ten-year-old Culver as a "recent" example of the Seventh Circuit’s opinion of incentive payments (97), but ignore the actually recent Espenscheid?
  • It gets basic pieces of Rule 23 wrong. For example, the survey contends that an important part of the Rule 23(a)(4) inquiry involves the question of adequacy of counsel. (79) True enough, up until 2003, when Rule 23(g) was introduced as a specific replacement for Rule 23(a)(4)’s inquiry into class counsel. For the first few years after the 2003 amendments, it was understandable that people might confuse this inquiry; Rule 23(g) has now existed for a decade.  There is simply no excuse for getting this wrong.
  • It ignores many significant recent cases and trends in class-action litigation. There’s no mention of the Supreme Court’s decision about loss causation in Halliburton. (A particularly strange omission since the review argues that the 2011-12 Term was heavily pro-defense (176).) There is no mention of Klier v. Elf Atochem (and no discussion of the growing controversy over cy pres relief.) There is no mention of the Ninth Circuit’s influential Bluetooth opinion. There is no discussion of Rule 23(c)(1)(B), and its renewed focus on trial plans. Pilgrim v. Universal Healthcard rates a mention in a string cite on predominance (112) ; there is no discussion of how it is the first appellate court opinion to smile on the motion to strike. In other words, while at times our tour guides are focusing on ten-year-old trends that are really just background now, at other times they completely miss those cases that most practitioners have been focusing on. I’m on record as believing that understanding terrain is vitally important; in this case, the errors and omissions have sorely diminished my trust in my guides.

Contrary to what some might think at this point, I really don’t like saying that the academics in my area of law are out of touch. I don’t want them to be. I want class-action scholars to be much smarter than me, much better-informed, and much faster to spot trends in case law that they can see from their armchairs that I might miss in the trenches. And there are some interesting and informative discussions in here, in particular on burdens of proof (30-33), numerosity (65-68), and typicality (71-75). (Even here, however, the discussion is less a discussion of recent trends, and more just an overview.)

What makes this so frustrating is that Professors Coffee and Lahav are both accomplished class action scholars, who usually do outstanding work. Like I said before, I used to look forward to Professor Coffee’s five-year reviews with great anticipation, because I knew I would learn something new. I didn’t have to worry about filtering out wrong information, or wading through well-established precedent. Both of these scholars are capable of better than this, and that’s exactly what I wish they had made available.