In the past few years, Professor Mark Moller of DePaul University Law School has proven to be one of the most thoughtful critics of modern class action law in the legal academy. While most commentators take on class action decisions from either a pro-plaintiff or pro-defendant standpoint, Professor Moller appears intent on evaluating these opinions according to the criteria set out by the arguments they advance. From that standpoint, he pointed out that class action defendants’ "originalist" arguments about due process were influenced heavily by a no-longer-favored line of Supreme Court cases. And now, as he argues in his recent article Common Problems for the Common Answers Test: Class Certification in Amgen and Comcast, the Supreme Court has applied its "common answers" test for class certification in ways that may not accord with the intent of its original author, the late Professor Richard Nagareda. As Professor Moller argues:
"Between the two biggest class-action cases this term, Amgen v. Connecticut Retirement Plans and Trust Funds and Comcast v. Behrend, every justice signed onto majority opinions that applied some ver- sion of the common answers test, confirming that the test is here to stay. Yet for those hoping that the Court’s adoption of the test would curtail the class procedure’s warping effect on substantive law, both are modest disappointments. Between the two cases, both the liberal and conservative wings separately indulged in precisely what Professor Nagareda’s framework was designed to prevent: law reform without accountability.
(Emphasis added.) According to Professor Moller, the Amgen Court committed the sin of "under reaching." That is, it decided the case in such a way as to avoid the truly problematic aspect of the litigation, which he argues was the application of the Basic presumption of reliance in securities cases.
By contrast, Professor Moller believes that the Behrend Court overreached, pushing the "common answers" formulation into an area of predominance analysis–damages–that courts have traditionally stayed out of, and compounding that error by doing so in a field–antitrust–that usually allows for aggregated damages.
Professor Moller’s argument contains some interesting analysis of the tactics used by plaintiffs, defendants, and lower courts in the wake of these decisions. But it is most useful as a reminder that, when adopting reasoning from academics or old cases, the best class-action lawyers make sure they have a deep understanding of exactly what they are borrowing. This lesson may be especially important if the Court continues (as many predict) to take on class action cases.