Plaintiffs: Kennedy's Move Left on Class Actions ‘Watershed Event'

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By Perry Cooper

April 6 — The real “watershed event” for U.S. Supreme Court class cases so far this term isn't that the justices ruled in favor of class action plaintiffs in the two cases its decided, but that Justice Anthony M. Kennedy joined the pro-plaintiff majorities in those cases, a plaintiffs' lawyer said April 5.

Speculation has swirled that the top court will move away from its recent pattern of anti-class action rulings because of the death of their most vocal opponent, Justice Antonin Scalia.

But Jocelyn Larkin noted that even before Scalia's death, Kennedy voted with the more liberal leaning justices in Campbell-Ewald Co. v. Gomez, 2016 BL 14352, U.S., No. 14-857, 1/20/16 . There, the court held defendants can no longer defeat class actions by offering to pay off the lead plaintiff.

Then, in Tyson Foods Inc. v. Bouaphakeo, 2016 BL 87179, U.S., No. 14-1146, 3/22/16 , Kennedy wrote a 6-2 decision favoring pork processing plant workers and their use of statistical proof to support class certification under Fed. R. Civ. P. 23.

Scalia's vote with the conservatives in the minority wouldn't have changed the case's outcome in that case.

Kennedy is often the court's swing vote, but he consistently sided with its more conservative members in the four major cases that limited the class device for plaintiffs in recent years: Wal-Mart Stores Inc. v. Dukes, Comcast Corp. v. Behrend, AT&T Mobility LLC v. Concepcion and American Express Co. v. Italian Colors Restaurant.

Larkin said Kennedy's shift indicates that the strong, five-person majority that the U.S. Chamber of Commerce relied on in those cases is gone. And, without Scalia, “we're not going to see the campaign against class actions that we've all been suffering through,” she said.

Larkin is the executive director of the pro-consumer group the Impact Fund in Berkeley, Calif.. It filed an amicus brief in support of the class in Tyson Foods.

Jason L. Lichtman, who represents plaintiffs for Lieff Cabraser Heimann & Bernstein LLP in New York, agreed.

But he cautioned that the trend going forward depends on who is elected the next president. “Another Democrat means that Tyson Foods is a launching pad for very good things,” he said.

Lieff Cabraser also filed an amicus brief on behalf of the plaintiffs in Tyson Foods.

Dukes Recast

Both attorneys agreed that Tyson Foods is a good decision for plaintiffs not just because it is a win for the plaintiffs involved, but also because it reinterprets two Supreme Court holdings as plaintiff-friendly decisions.

The court distinguished the case from its earlier holding in Wal-Mart Stores Inc. v. Dukes, 131 S. Ct. 2541, 2011 BL 161238 (2011) .

There, the Supreme Court said 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

In Dukes, commonality failed because of an absence of statistical proof, Larkin said. She represented the plaintiffs in that case.

“What Justice Kennedy says here [in Tyson Foods] is the plaintiffs were trying to use statistical proof to establish liability on a classwide basis.” This interpretation of Dukes is “completely off base,” Larkin said.

Kennedy said the evidence was admissible in Tyson Foods because the employees worked at the same facility, doing similar work and were paid under the same policy.

“This has nothing to do with the analysis in Dukes but this was how Justice Kennedy distinguished it,” Larkin said.

“He found that there was enough similarity among the employees to justify using statistical evidence to prove what their experiences had been.”

Lichtman sees an important practice tip for plaintiffs' lawyers there.

“The way that Justice Kennedy described [Dukes] does not, if you actually read [Dukes] closely, have a whole lot to do with what actually happened,” he said.

He suggested that plaintiffs' lawyers shouldn't run away from the fact that the Tyson Foods decision recasts Dukes in a way that is favorable to their side.

Comcast Is Dead?

Justice Clarence Thomas's dissent also reinterpreted Comcast, the plaintiffs' lawyers said.

In Comcast, the five-member majority ruled that the proposed 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, Comcast Corp. v. Behrend, 133 S. Ct. 1426 (2013) .

Thomas basically said that many defendants' common reading of Comcast is dead, Larkin said.

He essentially said, “Wait a minute, I thought Comcast meant that you must have a common methodology for damages, but the majority is saying that's not true anymore,” Larkin said.

She said the dissent can be cited for the proposition that Prof. William Rubenstein's definition of predominance from the Newberg treatise on class actions is the preferable one.

That definition—that predominance can be satisfied despite the need to make individualized damage determinations— “is very favorable definition for plaintiffs,” she said.

Lichtman called Thomas's opinion “just epic-ly weird.”

“Never have I read a conservative dissent and thought, I can't wait to cite it!” he said. “Thomas says, ‘Boy the majority opinion is terrible because it says that Comcast is narrowed to nothing.'”

Lichtman's response? “Great! I didn't necessarily read the majority opinion that way until you told me I could, but now I do and I'll cite you for it,” he said.

Court Blessing Issue Classes?

Lichtman pointed out another practice tip for plaintiffs' lawyers to be taken from the court's discussion of bifurcation in .

The court said the defendant company rejected the plaintiffs' proposal to try the case in separate liability and damages phases, and then tried to profit from the difficulty not bifurcating caused in terms of uninjured class members.

Lichtman's admittedly aggressive take on this language is that the court is blessing the notion of a Rule 23(c)(4) issue class without citing the rule explicitly.

Issue certification—where classes are only certified as to some parts of a case, such as liability or damages—wouldn't present the problem of uninjured class members because the class definition can change between the liability and damages phases, he said.

“It has ascertainability implications too,” he said. “You don't have to be able to identify everyone at the start, and you don't have to pull out the uninjured class members from day one.”

Larkin and Lichtman spoke at an April 5 webinar hosted by consumer advocacy organization Public Justice.

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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