Northwestern Law professor Martin Redish should be very familiar to readers of this blog. I’ve covered his work before, from his constitutional challenges to the class action through his critique of the cy pres remedy to his surprising turn to what looked like a “trust model” of the class action last year. Professor Redish’s work is—unlike many modern class action scholars—not easily classified. I’ve said before, and I’ll likely say again (I’m certainly saying it now): you ignore Professor Redish at your peril.
2013 did not offer the blockbuster docket in front of the Supreme Court that 2011 did, but that didn’t stop the Court from issuing a number of opinions whose effects will be felt for some time to come. In addition, a number of other courts took bold steps to either support or constrain class action practice. The key trends coming out of 2013: watch out for predominance, and watch out for tricky settlement provisions. Also, pay attention to the complaint; key flaws can still lurk in there.
Yesterday, the Supreme Court issued its opinion in Standard Fire Insurance v. Knowles. The question the Court faced in this case was whether a plaintiff may avoid removal of a class action under CAFA by stipulating that the case is worth less than $5 million, the statutory amount-in-controversy requirement.
The Knowles opinion–which was unanimous–provides a straightforward answer. As Justice Breyer put it:
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As applied here, the statute tells the District Court to determine whether it has jurisdiction by adding up the value of the claim of each person who falls within the definition of Knowles’ proposed class and
There’s an old joke about a physicist asked to help increase milk production at a dairy farm. He begins by assuming a spherical cow.
There’s another old joke about a group of academics stranded on a desert island with a can of food. As they try to figure out how to get the food out of the can and into their mouths, the economist argues they should assume a can opener.
Last month, I received a flurry of email from various people who wanted to point me towards Mark Herrrman’s column on Above the Law, "Torpedoing Class Actions." In that column, Herrmann reviewed Martin Redish’s 2009 book Wholesale Justice, which argues that class actions are an unconstitutional delegation of state power to private lawyers. He also called class-action defense lawyers "derelict" and asked "Where is the practicing bar?" when it comes to advocating Redish’s arguments.
Earlier today, the Supreme Court issued its opinion in Smith v. Bayer Corp. In a unanimous opinion authored by Justice Kagan, it held that a federal court cannot enjoin a state court from re-litigating a class action that had been denied certification in federal court. In doing so, it barred a tactic that defense lawyers had been using for some time: invoking the Anti-Injunction Act to bar state-court relitigation of class actions. And defense lawyers sighed and began to slump their shoulders like Charlie Brown …
… which, as it turns out, is not necessary. Because while the … Continue Reading
As I’ve discussed before, there are few areas of law as polarized as class actions. The plaintiff and defense bars in class-action law rarely agree on anything, from the proper scope of Rule 23 to what a class action is in the first place. And I’m not the only one to have noticed this divide. Connecticut law professor Alexandra Lahav recently published an essay in the Fordham Law Review on "Two Views of the Class Action."
Lahav’s essay could improve from more focus. She winds up talking about two different pairs of competing views–one of class actions, and … Continue Reading