The Practice: Class Action Cacophony at the Supreme Court

Vol. 35 No. 32 National Law Journal Pg. 28 (April 15, 2013)

Public Law and Legal Theory Research Paper Series, Number 406

4 Pages Posted: 18 Apr 2013

Date Written: April 15, 2013


Commentary and analysis of the Supreme Court’s February and March 2013, decisions in three major class action appeals: Amgen Inc. v. Connecticut Retirement Plan and Trust Funds (February 27, 2103); Standard Fire Ins. Co. v. Knowles (March 19, 2013), and Comcast Corp. v. Behrends (March 27, 2013). The article surveys the Court’s liberal and conservative divide on class certification issues, giving some support to both the plaintiff and defense sides of the class action docket. In Amgen, in an opinion by Justice Ginsburg, a divided Court again saved the fraud on the market presumption for certification of securities class actions. On the other hand, in Comcast, in an opinion authored by Justice Scalia, an equally divided Court found fatal to class certification the failure of proof of classwide damages for a Rule 23(b)(3) damage action. The Comcast decision, coupled with a concurrence by Justice Alito, suggests that there may be at least four votes for the Court to consider the original fraud on the market presumption announced in the landmark case, Basic v. Levinson.

Although embodying different outcomes, the Amgen and Comcast decisions both embrace the same litany of core class certification principles. However, the Court in neither case has clarified or illuminated further the debate over the extent to which trial courts may properly assess the underlying merits of class claims as part of the certification process. Instead, the Court in both cases deflected the merits conversation into the Rule 23 predominance requirement.

Finally, in Standard Fire Ins. Co. v. Knowles, in an opinion by Justice Breyer, a unanimous Court agreed that a class representative could not stipulate to less than the $5 million damage threshold in order to evade removal under the Class Action Fairness Act of 2005. A class representative could bind himself, but had no power or authority to bind absent class members.

Keywords: Amgen v. Connecticut Retirement Plans, Comcast v. Behrends, Standard Fire Ins. Co. v. Knowles, Federal Rule 23, class certification, fraud on the market presumption, classwide damages, merits consideration at class certification, CAFA, stipulation to CAFA amount in controversy

Suggested Citation

Mullenix, Linda S., The Practice: Class Action Cacophony at the Supreme Court (April 15, 2013). Vol. 35 No. 32 National Law Journal Pg. 28 (April 15, 2013). Available at SSRN:

Linda S. Mullenix (Contact Author)

University of Texas School of Law ( email )

727 East Dean Keeton Street
Austin, TX 78705
United States
512-232-1375 (Phone)

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