Unprotected Class: Five Decisions, Five Justices, and Wholesale Change to Class Action Law

Abstract

Five decisions by five men have fundamentally changed the class action world. These changes so alter accepted paradigms that a class action attorney who fell into a coma in 2009, only to awake in 2014, would find that she needs to relearn most of what she knows about class action law. In short order, principles central to whether a class action can be filed, where it must be filed, and whether it is likely to succeed were remade by five opinions supported by a bare majority of the United States Supreme Court. And in every case, these changes made it less likely that people previously protected by class actions would be protected in the future. This article chronicles these recent changes, identifies the potential risks created by the changes, and identifies the need for serious scholarly engagement in this brave new world of class actions.

Keywords: class action, Comcast, Concepcion, arbitration, class arbitration