At this point, I’m well aware that I tend to sound like an old crank when reviewing class action scholarship; much of it repeats the same old stuff, predicts the imminent demise of the class action in its current form, and looks at the same Supreme Court cases instead of digging into where the real
Supreme Court
The Ten Most Significant Class Action Cases of 2013
By The Editors on
Posted in Certification
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…
The Supreme Court is Also Coming for Judge Baer
By The Editors on
Posted in Lawyers
In what is rapidly becoming a trend, the Supreme Court denied certiorari in yet another class action (this time Martin v. Blessing, but one Justice wrote an accompanying opinion to signal where the Court may come out should the issue arise again.
Martin is one of several cases in which SDNY Judge Harold Baer…
Overreaching, Underreaching, and the Supreme Court
By The Editors on
Posted in Scholarship
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…
The Supreme Court Is Coming for Cy Pres
By The Editors on
Posted in Settlement
Not right away, but it’s thrown down the gauntlet. In denying certiorari in Marek v Lane, Chief Justice Roberts took the time to issue an accompanying opinion. Marek v. Lane, No. 13-136, 2013 U.S. LEXIS 7772 (Nov. 4, 2013). In it, the Chief Justice takes the time to rehearse the facts behind the…
No Right to Bring a Class Action – American Express Co. v. Italian Colors Restaurant
By The Editors on
Posted in Motions Practice
At the end of last week, the Supreme Court decided American Express Co. v. Italian Colors Restaurant, which further refined the Court’s approach to arbitration of class actions. Most importantly, it eliminated the "vindication of rights" exception to enforcing arbitration clauses. (That was the doctrine that held that a court need not…
The Further Adventures of Behrend v. Comcast Corp.
By The Editors on
Posted in Certification
Earlier this week, the Supreme Court quietly granted certiorari in Sears, Roebuck & Co. v. Butler:
Petition GRANTED. Judgment VACATED and case REMANDED for further consideration in light of Comcast Corp. v. Behrend, 569 U. S. ___ (2013).
The case below, Butler v. Sears, Roebuck & Co., had been notable because it…
Mootness Controversy Still Live – Genesis Healthcare Corp. v. Symczyk
By The Editors on
Posted in Motions Practice
Rule 68 offers of judgment have been controversial in class action practice for quite some time. Proponents of the tactic believe that it offers a valuable means of limiting frivolous lawsuits: where there are really only a few affected claimants, an offer of judgment can force them to face up to the costs of meritless…
New signs of life for the predominance standard
By The Editors on
Posted in Certification
It’s a busy week for me, so here’s just a brief rundown of two opinions vacated and remanded from the US Supreme Court:
RBS Citizens NA v. Ross (7th Cir. 2012). (More here.) The Seventh Circuit affirmed certification of a wage-and-hour case, despite what it conceded was a less-than-optimal order certifying the class. RBS…
Supreme Court reinforces predominance standard – Comcast Corp. v. Behrend
By The Editors on
Posted in Certification
Yesterday, the Supreme Court issued its opinion in Comcast Corp. v. Behrend, the antitrust case which commentators (including me) had expected would finally resolve the question of whether a trial court must apply the Daubert evidentiary standard to expert testimony in a certification debate. It turns out we were wrong. Due to a…