Supreme Court Scorecard:Is the Tide Turning in Favor of Class Action Plaintiffs?

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By Perry Cooper

March 24 — So far it looks like consumer and worker advocates pursuing class actions are having a better-than-expected term at the U.S. Supreme Court.

How much better?

A review of selected class cases shows plaintiffs winning 5-1, with only one major ruling still pending.

Here's the breakdown.

The court has already ruled in favor of class action plaintiffs in two closely watched cases.

It held 6-3 in Campbell-Ewald v. Gomez that class claims survive even after a lead plaintiff rejects a complete offer of relief from the defendant.

Then, in Tyson Foods v. Bouaphakeo , the top court refused 6-2 to adopt a categorical rule against the use of statistical evidence in class certification decisions.

Defense attorneys are quick to point out that these decisions may not be as significant as plaintiffs' attorneys would like to believe.

The court did rule in favor of the defendant in DIRECTV Inc. v. Imburgia , a consumer arbitration case. But DIRECTV is only expected to have limited impact.

An antitrust settlement announced by Dow Chemical after Justice Antonin Scalia's death, and two decisions not to review hotly contested class issues could also hint that the court is taking a swing towards favoring plaintiffs.

Another case that could determine whether plaintiffs must prove an “actual injury” to bring claims for statutory damages—which are often brought on behalf of a class—is still pending.

A decision in that case, Spokeo v. Robins, argued Nov. 2, 2015, may determine whether the court's run of pro-big business class action rulings over the last couple of years has really come to an end.

Selected Class Cases in the 2015-2016 Supreme Court Term
Case Class Issues Presented Details
Tyson Foods Inc. v. Bouaphakeo, 2016 BL 87179, U.S., No. 14-1146, decided 3/22/16 Tyson Foods challenged certification of a worker overtime class action. It argued that the class used improper statistical averaging to prove predominance and included non-injured workers in the class. Winner: Plaintiffs
Holding: The court said plaintiffs may use statistical evidence to prove classwide injury as long as an individual could use that same evidence to prove his or her own claim. It refused to reach the no-injury question, saying the challenge was premature because the district court hasn't yet decided how to divvy up the $5.8 million class award.
The Rub: Defense attorneys say this isn't such a big win for plaintiffs because the decision lays out a clear strategy for defendants to use to challenge plaintiffs' use of statistics in class cases.
Campbell-Ewald Co. v. Gomez, 2016 BL 14352, U.S., No. 14-857, decided 1/20/16 A marketing company challenged a plaintiff's standing to sustain a Telephone Consumer Protection Act class action after the plaintiff rejected the company's offer to pay him everything he was owed in statutory damages under the act. Winner: Plaintiffs
Holding: The court said rejecting a defendant's offer of full relief doesn't moot a plaintiff's individual or class claims.
The Rub: But the court gave defendants a possible loophole by refusing to rule on whether an actual tender of relief would moot the claims.
DIRECTV Inc. v. Imburgia, 2016 BL 408512, U.S., No. 14-462, decided 12/14/16 DIRECTV argued that an arbitration clause with a class action waiver in its customer agreement was enforceable because the Federal Arbitration Act preempted application of any contrary state law. Winner: Defendants
Holding: The court said the arbitration clause was enforceable in light of its 2011 ruling in AT&T Mobility LLC v. Concepcion, 563 U.S. 333 (2011), which overturned California's ban on class waivers.
The Rub: Many say the ruling will have a limited effect because it interprets contract language that is rarely used anymore.
Spokeo Inc. v. Robins, U.S., No. 13-1339, argued 11/2/15 Website challenged plaintiff's standing to bring a class action under the Fair Credit Reporting Act in which he alleged the site posted inaccurate, but not necessarily negative, information about him. Winner: ?
Holding: ?
Reasoning: A ruling is still pending. The death of Justice Antonin Scalia could have shaken up the breakdown of votes in this case, delaying the decision.
Microsoft Corp. v. Baker, U.S., No. 15-457, cert. granted 1/15/16 Microsoft asked the court to consider the propriety of the plaintiffs' decision to voluntarily dismiss their allegations that the Xbox 360 is defective, with prejudice, to guarantee their right to appeal an unfavorable certification decision. Winner: ?
Holding: ?
The Reasoning: The case is conspicuously absent from the court's calendar for the rest of the term, leading many to speculate the court pushed it off until a replacement for Scalia can be confirmed.
Dow Chem. Co. v. Indus. Polymers Inc., U.S., No. 14-1091, settlement announced, cert. petition withdrawn 2/26/16 Dow challenged statistical evidence plaintiffs used to prove classwide impact and damages in an antitrust suit alleging it conspired with other chemical makers to fix urethane prices. Winner: Plaintiffs
Reasoning: Dow cited “uncertainties” created by Scalia's death as its reason for settling and withdrawing its cert. petition.
The Rub: One consumer advocate called this reasoning “spin,” saying the announcement of the deal was structured to urge the Senate to replace Scalia with another class action opponent.
Frank v. Poertner, U.S., No. 15-765, cert. denied 3/21/16 An objector challenged the high dollar amount class counsel will receive in comparison to class member recovery under a class settlement over falsely advertised batteries as long-lasting. Winner: Plaintiffs
Reasoning: The court's refusal to review this class-friendly ruling could signal a reluctance to take up class action issues now that Scalia—a vocal opponent of the class device—is no longer on the bench.
Direct Digital LLC v. Mullins, U.S., No. 15-549, cert. denied 2/29/16 A dietary supplement maker challenged certification of a class of consumers alleging the pills were falsely advertised. It argued that the class failed to prove ascertainability, the implied rule that class members must be readily identifiable. Winner: Plaintiffs
Reasoning: Defendants argued that the question was ripe for review because federal circuit courts are split on the proper test for ascertainability. But the top court refused the hear the case, perhaps wanting to avoid a potential 4-4 split on the issue with only eight justices on the bench.

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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