This past Supreme Court Term included several closely-watched cases.  One of the most studied was Tyson Foods v. Bouaphakeo, in which the Court identified at least one area of class action litigation where using statistical evidence instead of plaintiff-specific evidence might be allowed when determining class certification.

Since the Court issued its opinion, defendants have–as one would expect–worked hard to limit the Court’s holding to its specific facts.  (Not necessarily a difficult task, since the Court itself tied its result closely to the statute underlying the Tyson Foods plaintiffs’ claims.)  And, of course, plaintiffs and plaintiff-specific scholars have worked … Continue Reading

A few weeks ago, the Duke Law Center for Judicial Studies held a conference on class action settlements in San Diego, to discuss best practices in the wake of the likely Rule 23 amendments. Like all of its conferences, this one was held under the Chatham House Rule, which dictate that you can repeat the substance of anything said but not the identity of the speakers.  The candor these rules foster is extraordinary, and lead to valuable discussions.  So, with that in mind, here are the five most important things attendees took away from the conference.

  1. Plaintiff-oriented amendments
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For the last six or seven years, a growing academic literature has put forward the argument that the primary justification for class actions is not to compensate absent class members, but to deter corporate wrongdoing. That justification has formed the basis of a number of arguments, from Professor Fitzpatrick’s proposal that class action attorneys earn a 100% commission on their cases to Professor Lahav’s that the law should go a little easier on the class-action lawyer. It also underlies many of the fears that tightening the class-action rules may lead to rampant corporate misconduct.

Few practitioners or scholars have … Continue Reading