A few years ago, I complained that class action scholarship was on the decline, and could improve from, among other things, digging into the actual caselaw out there, and making hard, falsifiable predictions about where the law is headed.
I have no illusions that Professor Robert Klonoff hangs on my every word about legal scholarship. After all, he’s too busy practicing it himself. But one of the things that makes him one of my favorite academics (even though I don’t always agree with him) is that he’s one of the few doing what feels like real academic work.
Take his latest working paper, to be published by the Emory Law Journal next year: Class Actions in 2025: A Prognosis. This is an ambitious, meaty article. It’s newsworthy in part because it contains the current reporter for the Rule 23 Subcommittee predicting no structural changes to Rule 23. But it’s worth reading for a far more interesting reason than that: this is the only class action article I can recall that makes actual, concrete predictions about where the law is headed. [Disclosure: Professor Klonoff gave my first book, The Class Action Playbook, a very nice blurb back in the day.]
So what are Professor Klonoff’s big predictions? In his words:
Securities class actions will continue to flourish, but consumer, employment, and personal injury class actions will continue to decline.
The Supreme Court will curtail the ability of plaintiffs to establish liability or damages through expert statistical sampling (referred to frequently as “trial by formula”).
The “ascertainability” requirement imposed by the Third Circuit will be repudiated by the Supreme Court or by the Third Circuit itself.
The Supreme Court will conclude, as have numerous circuits, that an unaccepted offer of judgment to a class representative pursuant to Federal Rule of Civil Procedure 68 is a legal nullity and does not moot the individual’s claim or the putative class action.
Defendants will advance several arguments against class certification that, until now, have had only limited success. These will include expansive applications of Rule 23’s typicality, predominance, and superiority requirements. Although defendants will not be fully successful with these arguments, they will succeed in erecting some additional barriers to class certification.
During the next decade, courts addressing class certification and the fairness of settlements will give greater weight to allegations of unethical behavior by class counsel and by counsel representing objectors to settlements.
The future of class actions will ultimately lie in the hands of a small number of appellate court judges who have a special interest and expertise in aggregate litigation.
He also predicts, in more general terms, that more class actions will go to trial.
Some of Professor Klonoff’s predictions already seem a little shortsighted. For example, he predicts that “no injury” class actions may disappear as a result of legislation like HR 1927, despite the fact that the bill looks unlikely to make it through the Senate as currently constituted. Similarly, he predicts that consumer and labor class actions will decline because of the ubiquity of arbitration clauses, which seems not take into account the active role the CFPB has taken in policing class-action arbitration. (I say “seems” because he takes the slightly longer view on how credible those regulations may prove to be.)
But it’s not the specific win-loss record he accumulates that makes this article worthwhile. Instead, it is the fact that Professor Klonoff shows his work, using current caselaw. You can disagree with his prognosis (and, on certain specific predictions, I do), but it is grounded in the actual state of the law, rather than what he wishes class action law looked like. And that makes him valuable reading for both the academic and the practitioner.