Class Actions May See Renaissance After Scalia's Death

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By Perry Cooper

Feb. 17 — U.S. Supreme Court Justice Antonin Scalia was a vocal opponent of the class action device. His death Feb. 13 could improve the chances of class action plaintiffs in cases currently pending before the U.S. Supreme Court, and in future cases.

“Scalia’s death could affect not only the future of the court and law generally but specifically the viability and continuation of class actions,” consumer advocate Arthur H. Bryant told Bloomberg BNA Feb. 16.

Scalia's class action opinions—which included such sweeping rulings as Wal-Mart Stores Inc. v. Dukes, Comcast Corp. v. Behrend and Am. Express Co. v. Italian Colors Rest.–– “included words that laid the ground work to further limit class actions for future cases,” Bryant said.

“His passing, at a minimum, means that he will no longer be working to limit class actions,” said Bryant, who is chairman of the public interest firm Public Justice in Oakland, Calif.

Columbia Law professor John C. Coffee Jr. in New York called Scalia “the architect of the commonality requirement announced in Wal-Mart.” That decision “has significantly reduced the size of class actions because larger actions are much harder to certify,” he told Bloomberg BNA Feb. 17.

Of course, Bryant said, “How the law develops from here will depend enormously on [Scalia's] replacement.”

Bryant predicted a shift in the types of cases that are brought before the court in Scalia's absence.

“Corporations, particularly corporate defendants in huge consumer, worker and other cases, have been pushing very hard for Supreme Court review of as many cases as they possibly can because this court has proven to be interested in closing their access to the courts,” he said.

Many of the top court's recent class action and business rulings were decided 5-4 with Scalia in the pro-business majority.

But if the 5-4 votes start going the other way, “you’re going to see corporations desperately seeking to avoid making new law in the Supreme Court on these access to justice issues and you’ll likely be seeing plaintiffs pushing to reverse some of these decisions to sustain access.”

Business advocate Cory L. Andrews agreed this may prove the trend, although he rejects the notion that the court was pro-business during Scalia's tenure.

“It’s idiosyncratic what any given attorney and parties decide to do in any given case,” Andrews, senior counsel at the Washington Legal Foundation in Washington, which supports policies in favor of business, told Bloomberg BNA.

Nonetheless, Scalia's “absence on the court will have ripple effects on all parties deciding litigation strategy on appeal or seeking review,” Andrews said.

While Scalia was pivotal to class action jurisprudence generally, he also took a personal interest in the issues at stake in the cases, Andrews said. “We’re all poorer for not having the benefit of his reasoning on these cases whatever the outcomes may be.”

Tyson Foods, Spokeo Uncertain

Most immediately, the fates of two closely watched class cases argued in November are up in the air, as it's possible both were going to be 5-4 decisions, though Bryant said that was less likely than he once thought.

Those cases are Spokeo Inc. v. Robins, U.S., No. 13-1339, argued 11/2/15; and Tyson Foods Inc. v. Bouaphakeo, U.S., No. 14-1146, argued 11/10/15.

If the court issues 4-4 decisions in these cases, the pro-plaintiff rulings below would stand, Bryant said.

To avoid a tie, the court could decide to rehear arguments next term once a successor to Scalia is appointed, he said.

Or the court could reach a very narrow procedural holding that would win a majority of votes, Bryant said.

Andrews agreed that 4-4 opinions would make the lower courts' decisions “the law of the land.”

But they would likely invite further clarification in future terms when the court is fully staffed, he said.

4-4 Rulings, Rehearing Possible

On Nov. 2 the court heard arguments in Spokeo, which asks the court to consider whether a statutory violation of the Fair Credit Reporting Act, without additional “concrete” harm, gives the plaintiff the right to sue.

Arguments followed Nov. 10 in Tyson Foods, where Tyson challenged certification of a Fair Labor Standards Act collective action and Rule 23 class action brought by pork processing workers.

Assuming the votes had already been cast in those cases, and Scalia were part of a 5-4 minority, there would be no reason to postpone judgment as the decision could be rendered 5-3, Bryant said.

Only in cases that were 5-4 with Scalia in the majority, or where he was tapped to write the dissent, will his absence make a difference, he said.

Standing Was a Favorite Issue

But the outcome of the two cases may not hinge on Scalia's vote anyway.

Erwin Chemerinsky, founding dean of the UC Irvine School of Law and author of several books on constitutional law, predicted at an American Constitution Society event Feb. 17 that Spokeo will go 4-4.

Bryant, however, said the argument in Spokeo “made it sound as if this case did not present the question that the defendants said was presented.”

“The whole case was supposed to turn on whether someone had Article III standing if they had not suffered a concrete injury, but this person clearly had suffered a concrete injury,” he said. “So given those facts, Justice Scalia’s absence may not make any difference.”

But Andrews noted that standing was a particular pet issue of Scalia.

“Justice Scalia was very pivotal to this jurisprudence,” he said. Scalia authored the opinion in Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992), which established that Congress can't create standing where the plaintiff can't show injury-in-fact, a causal connection and redressability.

Scalia also wrote a law review article on the topic when he was on the D.C. Circuit, Andrews said, lamenting the fact that he won't be able to weigh in on the case posthumously.

Coffee agreed that Scalia would have had fun with Spokeo, which he said “has a fact pattern that Scalia would have loved to pick apart.”

Scalia's death is also likely to throw off the time line for a decision in Spokeo, which could have been released as early as Feb. 22.

Now that's unlikely, unless the justices had already reached their decision with Scalia in the minority, Bryant said.

“Timing-wise, it is due for an opinion and I did not think it was going to be one of the cases that would go down to the wire, even though it was looking like it was going to be a divided case at oral argument,” Andrews said.

“If he had been tasked with drafting the majority opinion, or the dissent, it’s going to take some time for someone else to take the laboring oar on that,” he said.

No Effect on Tyson Foods?

The decision in Tyson Foods is even less likely to turn on Scalia's vote, Bryant said.

The questioning at oral argument gave Bryant and many others the sense that the case was going to turn on FLSA caselaw, and not raise class action issues.

If the court had already come to a consensus on a narrow, FLSA holding, the court could issue a ruling without any changes.

Tyson Foods raises issues like those addressed in Wal-Mart v. Dukes and Comcast v. Behrend, two major Supreme Court class action decisions that made class certification more difficult for plaintiffs. Scalia wrote the majority in both.

Wal-Mart Stores Inc. v. Dukes, 131 S. Ct. 2541 (2011) , held that a proposed class of over a million female Wal-Mart workers alleging pay and promotion discrimination couldn't be certified because they failed to establish enough of a common thread in the case to tie their claims together.

Comcast Corp. v. Behrend, 133 S. Ct. 1426 (2013) , reversed class certification and held that a proposed Fed. R. Civ. P. 23(b)(3) class couldn't satisfy the predominance requirement where the plaintiffs' damages model didn't measure only those damages attributable to their sole surviving antitrust impact theory.

Andrews said Tyson Foods presents similar issues. “Whatever the court ends up doing, it’s probably safe to assume that there’s one less vote to overturn the court of appeals decision in both of those cases.”

Baker Yet to Be Argued

Another case still pending on the court's docket is Microsoft Corp. v. Baker, U.S., No. 15-457, cert. granted 1/15/16, which the court agreed to hear in January.

Baker concerns whether plaintiffs may voluntarily dismiss their suit as a procedural tactic to guarantee appellate review of an unfavorable class certification decision.

Bryant said he's not sure what Scalia's absence will mean for that case.

“Certainly it suggests that one likely vote against the plaintiffs isn’t there,” he said. “But beyond that, we don’t know what the other eight think, so it’s hard to say.”

Andrews said he's optimistic that Baker will be a win for defendants.

“It’s about the appellate jurisdiction of federal courts and there has been a broad consensus on the court on these kinds of procedural issues,” he said.

“In particular, Justice Ginsburg is sometimes very quick to insist that there be one set of standard procedures for everyone, that you can’t have one set of procedures for one side and another for the other side,” he said.

He expects broad interest on the court to address this situation, “where the plaintiffs have manufactured a trick that would allow them an absolute right of appeal and not defendants.”

He also pointed to the institutional interest of the court to act on behalf of the federal appeals courts to preserve judicial economy.

“The reason that the rules exist is to limit piecemeal appeals from every adverse decision,” he said. If the circuit court's ruling in Baker stands, the courts of appeals would see an increased workload of appeals from adverse class action determinations.

Baker is not yet scheduled for argument, but will likely be heard during the April argument session.

Delayed Certiorari Petitions

Scalia's absence has already affected other class cases the court was considering teeing up for the rest of this term.

The court announced Feb. 17 that it won't hold its Feb. 19 private conference, in which it was scheduled to consider certiorari petitions in several class actions. Among those was Direct Digital LLC v. Mullins, U.S., No. 15-549, cert. petition filed 10/26/15.

The defendant in Mullins argues that there is a circuit split over ascertainability—the issue of whether plaintiffs can reliably show who belongs to a class in suits over low-cost consumer items.

There has been no word on when the petitions will next be considered.

To contact the reporter on this story: Perry Cooper in Washington at

To contact the editor responsible for this story: Steven Patrick at

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