We left off last Monday in the middle of something — the Seventh Circuit’s latest proof of its leadership in the law of class actions.
My talk of the Seventh Circuit surge followed a segment on The outsize influence of Justice Scalia.
Now let’s finish up with the surge before turning to the third and final reason class actions will rebound: Politics.
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Have class actions — after a steady decline under the Roberts Court — begun a come-back?
I believe they have. And I offer here, and in the next post, three reasons they will continue to rebound.
The outsize influence of Justice Scalia
Justice Antonin Scalia disliked class actions. He advocated putting a spotlight on class
Scary case
After a trip to the Supreme Court and back, a massive case against 16 of the world’s largest banks for rigging the London inter-bank offer rate (LIBOR) — “the world’s most important number” — will return to the district court in Manhattan scarier than ever for the defendants. Gelboim v. Bank of Am.
How will lower federal courts react to the loss of a 5-4 pro-business majority on the U.S. Supreme Court?
In this post, I will tell you my Antonin Scalia story — and about his role in limiting class actions.
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12+ years
In its more than 12 years of life, the case of Comcast Corp. v. Behrend has offered dozens of chances for the lawyers to persuade — or not.
Although class counsel suffered a tough 5-4 defeat in the U.S. Supreme Court, we convinced judges often enough to eke out $35 million in cash, bill credits, and services for the Philadelphia-area class.
Class plaintiffs prevailed mostly because we had the better side of the issues. But we also did a better job of earning the trust of the decision-makers we appeared before — the district judges in Boston and Philadelphia, appellate judges on the First and Third Circuits, and even justices of the Supreme Court.
Let me give you a few reasons for my view.
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Bring your checkbook
Today resumes the series on take-aways from the epic case of Comcast Corp. v. Behrend — an antitrust class action that began more than a dozen years ago, produced dozens of opinions, and survived a loss in the U.S. Supreme Court before ending in a $50 million settlement, the benefits of which class members started receiving last month.
Today’s lesson underscores a harsh reality — and one that critics of class actions tend to forget: Class actions cost class counsel not only their time but also their money, potentially large quantities of it.
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On December 8, 2003, the antitrust class action that lawyers know as Comcast Corp. v. Behrend started a 12-year odyssey through the federal courts. On December 15, 2015, the settlement that will end Behrend became final.
Today begins a five-part series on lessons that Behrend taught. This post will focus on a need that all plaintiffs share: the need for speed in getting to a final outcome, whether favorable or not. But it highlights a danger that exists especially in legally complex cases — the risk that the governing law will make reaching a favorable final resolution more costly, time-consuming, and risky.
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Leegin as wrecking ball?
Since the Supreme Court struck down an almost century-old rule of per se antitrust liability in Leegin Creative Leather Prods., Inc. v. PSKS, Inc., 551 U.S. 877 (2007),* defense lawyers have tried to turn a single sentence from Leegin into a per-se category killer.
The effort presents high stakes, principally because per se cases have several advantages over their rule-of-reason cousins. The former are simpler, cost millions of dollars less to work up and try, and have greater odds of success with a judge or jury. The per se rule:
You would expect a kindly hearing from the Fifth Circuit — a court that, despite President Obama’s six years of judicial appointments, still counts twice as many Republican (10) as Democratic (5) appointees in active service. But would the court drink the Kool-Aid?
The court answered on November 25. The panel gave a resounding no.
Class action skeptics
Since 2011, a 5-4 majority of the Supreme Court has made class actions harder to bring and tougher to sustain.
In the current term, the Court’s quintet of class action skeptics — Chief Justice Roberts and Justices Alito, Kennedy, Scalia, and Thomas — may use a pair of cases in which it has heard arguments to all but doom wide swaths of class cases altogether.
I write not to address those cases but to explain why even if the threats they pose prove non-fatal, the reprieve may not last. Two other petitions for review on the Court’s docket pose existential threats almost as potent.
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