Class Actions: A Court Divided

Abstract

During the 2015-16 term the Court continued its recent, robust interest in class action litigation, granting review in four class action appeals. This article analyzes the Court’s decisions in Tyson Foods, Inc. v. Bouaphakeo, Campbell-Ewald Co. v. Gomez, DIRECTV, Inc. v. Imbrugia, and Spokeo v. Robins. On balance, it was a relatively good year for the plaintiffs’ trial bar, which scored some significant victories in the class action arena. The Court’s majority endorsed the carefully crafted use of statistical methodologies in class litigation. In addition, the Court deflected the defense strategy of evading class litigation by picking off class representatives through settlement offers prior to class certification. However, a divided Court continued to fight over the enforceability of class action waivers in arbitration clauses. And, notably, the Court averted definitive resolution of the problem of the “no injury” class, deflecting this issue for ultimate resolution in some future case. And finally, it is worth noting that Justice Scalia’s vote would not have changed the outcome of any of the Court’s class action decisions this term. Nonetheless, with the end of the Scalia jurisprudential era, class counsel may now perhaps look to an even rosier future for class action litigation if a liberal Justice is added to the Court’s bench.

Keywords: Class Actions, Rule 23, Bouaphakeo, Tyson Foods, Spokeo, Robins, Campbell-Ewald, DirectTV, Statistical Proof, Class Actions Waivers, Offers of Settlement, No Injury Class, Justice Scalia