What can we expect from Second Circuit Judge Sonia Sotomayor if she clears the Senate confirmation gauntlet and ascends to the U.S. Supreme Court?
By "we", Blawgletter means you and me — mostly lawyers who handle commercial cases but with a smattering of the clients who love them. Plus the occasional judge.
We won't find much in the press about the nominee's record on business disputes. Which fact led Blawgletter to take a look today at some of Her Honor's work product.
We found that, on class actions, Judge Sotomayor's view has stiffened (along with that of the federal judiciary in general). A pair of decisions, five years apart, illustrate the point.
In In re Initial Public Offerings Securities Litig., 471 F.3d 24 (2d Cir. 2006), a unanimous panel, which included Judge Sotomayor, held that district courts must find, from a preponderance of the evidence, that a putative class action satisfies all the applicable requirements of Rule 23. Previous Second Circuit decisions, the court noted, had taken a "lenient" approach. The court thus overruled In re Visa Check/MasterMoney Antitrust Litig., 280 F.3d 124 (2d Cir. 2001), to the extent it called for only "some showing". 471 F.3d at 36.
The same Judge Sotomayor who joined In re IPO wrote In re Visa Check. What happened?
We can't know, of course, but probably the 2003 amendments to Rule 23 played a role. In re IPO said the changes didn't "explicitly" answer the question of what standard applied, but they did point in the direction of tightening.
Regardless, does the apparent shift augur well for class action defendants? One can't tell, of course. But In re Visa Check reflects some skepticism of a common defense refrain:
The effect of certification on parties' leverage in settlement negotiations is a fact of life for class action litigants. While the sheer size of the class in this case may enhance this effect, this alone cannot defeat an otherwise proper certification.
280 F.3d at 145.