2013 was a memorable year for class actions. I’ve assembled my top 10 most significant developments below. There were almost enough U.S. Supreme Court decisions to fill up the entire list, but my number 1 development was still a pair of lower court decisions that may also become the story of the year in 2014.
10. Kiobel v. Royal Dutch Petroleum Co., 133 S.Ct. 1659 (2013) – Not a class action decision per se, but likely to have significant repercussions on the development of international class action law. Extraterritorial effect of the Alien Tort Statute is significantly limited.
9. Clapper v. Amnesty Intern. USA, 133 S. Ct. 1138 (2013) – Another non-class action decision already having a significant impact on the question of standing in data privacy class actions.
8. Oxford Health Plans LLC v. Sutter, 133 S. Ct. 2064 (2013) – Class Arbitration is not completely dead, but there’s a blueprint for how to kill it.
7. American Express Co. v. Italian Colors Restaurant, 133 S. Ct. 2304 (2013)- Arbitration continues to reign supreme, even under the “federal law of arbitrability”
6. Genesis Healthcare Corp. v. Symczyk, 133 S. Ct. 1523 (2013) – Can class actions be defeated simply by picking off the representatives one at a time? That’s for the circuits to decide.
5. Amgen Inc. v. Connecticut Retirement Plans and Trust Funds, 133 S.Ct. 1184 (2013) – Supreme Court holds that materiality is a common question and that proof of materiality is not a prerequisite to class certification, but raises questions about the continued viability of the Basic fraud on the market presumption in securities cases.
4. Certiorari granted in Halliburton v. Erica P. John Fund, No 13-317 – That didn’t take long. On the heels of , Supreme Court agrees to revisit the Basic fraud on the market presumption.
3. Comcast Corp. v. Behrend, 133 S.Ct. 1426 (2013) – Limited holding = damages theory has to match theory of liability. Expansive holding = no class certification unless the question of damages is susceptible to common, classwide proof. Which holding will be embraced by the lower courts?
2. Standard Fire Ins. Co. v Knowles, 133 S. Ct. 1345 (2013) – First ever CAFA decision limits representative plaintiffs’ ability to bind class prior to class certification. Can’t avoid federal jurisdiction by stipulating to no more than $4,999,999.99 in damages on behalf of a putative class.
1. Moldy Washing Machine Decisions – Limited Comcast holding prevails so far. Two lower courts reaffirm class certification orders after remand in light of Comcast. Issue certification is alive and well, for the moment, but stay tuned to see if the Court takes up these cases in 2014.