Kennedy Exit Likely Won’t Change Class Action Calculus

By Perry Cooper

Justice Anthony M. Kennedy may have been the U.S. Supreme Court’s swing vote on many important social and other issues, but his retirement isn’t likely move the pendulum on class actions.

Kennedy, who announced his upcoming retirement June 27, voted with the late Justice Antonin Scalia in Scalia’s most notable opinions limiting the class device: Wal-Mart Stores Inc. v. Dukes, Comcast Corp. v. Behrend, and Am. Express Co. v. Italian Colors Rest.

Class plaintiffs’ advocate Jocelyn Larkin saw a glimmer of hope after Scalia died in 2016: Kennedy authored a 6–2 pro-plaintiff decision in Tyson Foods Inc. v. Bouaphakeo. The ruling favored pork processing plant workers and their use of statistical proof to support class certification under Fed. R. Civ. P. 23.

Also in 2016, right before Scalia’s death, Kennedy voted with the court’s more liberal-leaning justices in Campbell-Ewald Co. v. Gomez. There, the court held defendants can no longer defeat class actions by offering to pay off lead plaintiffs.

But those decisions didn’t mark the beginning of a shift in Kennedy’s class votes after all. As he’d done before 2016, he voted against class plaintiffs in subsequent cases.

“I’m chuckling now to myself that I even said that at the time,” Larkin told Bloomberg Law as she reflected on Kennedy’s class action rulings June 27. “He did vote with the liberals on those two occasions.”

Active Questioner

Prominent defense attorney John Beisner told Bloomberg Law that Kennedy “typically embraced the defendant viewpoint in his votes in major class action-related precedents.”

Kennedy also joined the majority in a 1997 decision that clamped down on the use of class actions for personal injury claims, Beisner, parter at Skadden, Arps, Slate, Meagher & Flom LLP in Washington, said.

“Although he was an active questioner in oral argument of some of those cases, he very rarely authored majority opinions, concurrences, or dissents that touched on class action issues,” he said.

Status Quo

Plaintiffs’ attorney Jason L. Lichtman told Bloomberg Law he doesn’t expect much of a change in the status quo on class actions, at least in the short term.

“While I would be very surprised if the person were pro-consumer, not all of the potential nominees are affirmatively dismissive of consumer rights: Judges Hardiman and Pryor, for example, have at least some pro-consumer opinions,” Lichtman, partner at Lieff Cabraser Heimann & Bernstein LLP in New York, said.

He referred to Thomas M. Hardiman of the Third Circuit and William H. Pryor Jr. of the Eleventh Circuit, two judges whom some sources have speculated might be nominees for Kennedy’s seat because they were shortlisted as Scalia’s replacement.