The Supreme Court docket this past term had class action practitioners holding their breath. Over the last five years, the Court has limited access to class actions in cases including Wal-Mart Stores, Inc. v. Dukes, AT&T Mobility LLC v. Concepcion, and American Express Co. v. Italian Colors Restaurant. This term, the Court took on an unprecedented four class action cases. The outcome is fascinating and has many ramifications for the ability of class actions to serve as a vehicle for groups of people—including workers, minorities, and consumers—to hold corporations and the government accountable.
Good news for plaintiffs in a Third Circuit decision on mootness in a Rule 23(b)(2) injunctive relief class action, Richardson v. Bledsoe, No. 15-2876 (3d Cir. July 15, 2016). This case presents a variation of the Campbell-Ewald named plaintiff pick-off strategy in a systemic reform case. It recognizes a “picking off” exception to mootness in a class action where the individual claim for relief is “acutely susceptible to mootness” by the actions of the defendant. This one takes a bit of explaining.
The Supreme Court yesterday decided the third of three class actions cases from this term that we have been closely watching, Spokeo Inc. v. Robins. A few observations.
Phew! The Court did not adopt the most extreme of defense arguments that Congress cannot authorize statutory damages where the victim cannot prove that he or she actually lost money as a result of corporate malfeasance.
The 2016 Impact Fund Class Action Conference held on February 18/19, gathered class action practitioners and impact litigators from across the country for two days of brainstorming, war stories, and colorful lemon-based metaphors. It also reminded me of a few more terms to add to our growing Impact Fund Class Action Dictionary...
For more than a year, a subcommittee of the Advisory Committee on Civil Rules has been soliciting and vetting ideas for amending Rule 23, the federal class action rule (see previous post here). These hardy souls (Judge Robert M. Dow, Professor Robert Klonoff, Elizabeth Cabraser and John Barkett) have criss-crossed the country, attending more than a dozen conferences to hear from practitioners across the spectrum. The Impact Fund’s 2015 Class Action conference in Berkeley was one of the subcommittee’s whistlestops.
As a third-grader growing up in the suburbs of Minneapolis, Minnesota, I wouldn’t even think of leaving the house without pulling on my most fashionable pair of pants: Zubaz. They were so cool. Tiger print? Check. Cozy sweatpants material? Check. Available in the color scheme of my favorite pro football team? Of course. Everyone was wearing them. Everyone.
Thankfully, fashion trends come and go. The same can be said for class action defense strategies. Every so often, the defense bar comes up with a new plan to stop class actions in their tracks.