A question of numbers
Class actions can save courts and parties a lot of time and money. But what if the class includes just a few members? How much time and money will the class action device save then?
The Third Circuit grappled with that “numerosity” question in In re Modafinil Antitrust Litig., 837 F.3d 238 (3d Cir. 2016).
The answer it gave — that a class with 20+/- mostly big members may not pass the test — could reshape how courts handle antitrust cases worth billions of dollars.
Possible shift
In 2014, the ABA Journal called the Fifth Circuit the “nation’s most divisive, controversial and conservative appeals court”. Liberal blog Jezebel deemed it “exceedingly conservative”. Even The Wall Street Journal described the court this year as “conservative-leaning”.
But in a recent case over limits on voting rights, the court ruled for the left-leaning opponents of the restrictions. And last week, the court sitting en banc voted 11-5 to revive a $250+ million class action. Torres v. S.G.E. Management, L.L.C., No. 14-20128 (5th Cir. Sept. 30, 2016) (en banc).
Has the court’s center of gravity shifted?
A dilemma
A price-fixer cheats his buyers, but he may also do something worse — frighten them into doing nothing about it.
Last week, the Third Circuit made a ruling that will calm victims’ fears. Instead of bringing a claim they don’t want to prosecute, the court held, they may freely assign it to someone
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.
Last October, the Consumer Financial Protection Bureau published a study on how banks and other lenders use bans on class actions to save money.
The study resulted from a mandate in the Dodd-Frank Wall Street Reform and Consumer Protection Act.
As I noted when the study came out:
In 2016, despite contracts that mandate
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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The Times’s Gretchen Morgenson asked in her “Fair Game” column whether making “financial executives personally liable for a portion of any . . . legal settlements” in class actions — regardless of personal fault — would cut down on bad conduct.
I bet it would.
But I have a better idea.
Promise to pay class action lawyers big bonuses for finding the actual bad guys and making them pay.
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