Class Actions Part II: A Respite from the Decline

Abstract

In a 2013 article, I explained that the Supreme Court and federal circuits had cut back significantly on plaintiffs’ ability to bring class actions. As I explain in this article, that trend has subsided. First, the Supreme Court has denied certiorari in several high-profile cases. Second, the Court's most recent class action rulings have been narrow and fact-specific. Third, the federal circuits have rejected defendants’ broad interpretations of Supreme Court precedents and arguments for further restrictions on class certification. One explanation for this new trend is that defendants have been overly aggressive in their arguments, losing credibility and causing courts to push back. Another is that courts are retreating from the view that pressure on defendants to settle is itself a reason to curtail class actions. It remains to be seen, however, whether this trend is the new normal, or merely a respite from the decline of class actions.

Keywords: Class Actions, Arbitration, Aggregate Litigation, Decline, Certiorari, Dukes, Amgen, Tyson Foods, Spokeo, Campbell-Ewald, Ascertainability, No Injury