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Robinson & Cole Partner Wystan Ackerman, fellow class action blogger and friend of ClassActionBlawg.com, recently sent me a note about an exciting upcoming class action conference sponsored by DRI.  The conference will be held in Washington D.C. on July 21-22, 2016 and features a top notch slate of speakers and two days worth of cutting-edge class action related content tailored to the defense bar.   Click the link below for a program description and additional links to the registration site.

https://www.classactionsinsider.com/2016/06/dri-class-action-seminar-2016/

Price Waterhouse Coopers recently published an interesting study entitled Daubert challenges to financial experts, a yearly study of trends and outcomes, 2000–2015 (click the link to download a copy).

The study includes citations to recent opinions on the subject, along with practical insights from attorneys, including yours truly.  It concludes with a variety of useful statistics on the outcomes of Daubert challenges to financial experts, including the types of cases in which the change is made, the types of experts excluded, the jurisdictions in which exclusion rates are higher or lower, and the reasons for exclusion, among other things.  The study includes information on Daubert challenges in the class certification context that will no doubt prove useful in dealing with other types of experts as well as financial experts.  Be sure to check it out!

The United States Supreme Court issued its highly-anticipated decision this morning in Spokeo, Inc. v. Robins, No. 13-1339, a case that many commentators have been following as a potential barometer for the Court’s treatment of consumer and class action issues following the death of Justice Antonin Scalia.  As it turns out, Justice Scalia’s absence did not impact the outcome of the case, which was decided by a 6-2 majority (though there is of course no way of knowing how Justice Scalia’s participation might have impacted the rationale).

The Petition for Certiorari had originally been granted to answer the question “whether Congress may confer Article III standing upon a plaintiff who suffers no concrete harm, and who therefore could not otherwise invoke the jurisdiction of a federal court, by authorizing a private right of action based on a bare violation of a federal statute.”  http://www.supremecourt.gov/qp/13-01339qp.pdf (Emphasis added).

The majority opinion, authored by Justice Alito, answered this question in the negative, holding that a plaintiff must establish “concrete” harm in order to have standing to pursue a statutory cause of action in federal court.  However, the interesting part of the opinion is the Court’s analysis of what may suffice as “concrete” harm.  In particular, the Court held, Congress may identify “intangible” harms and elevate those harms to the status of concrete injuries supporting Article III standing.  Examples of these intangible harms cited in the opinion include reputational harms suffered for common law torts, like libel and slander, that are difficult to measure, as well as other intangible public harms, such as voters’ inability to access public information.

After reiterating that a plaintiff seeking relief for a statutory violation must prove a harm that is both particularized and concrete and my not simply rely on a procedural violation of the statute, the Court did not go on to evaluate whether Robins himself had demonstrated a concrete injury flowing from the Fair Credit Reporting Act violations alleged in the case before the Court.  Instead, the Court remanded the case to the Ninth Circuit Court of Appeals to perform that analysis, making clear that “[w]e take no position as to whether the NinthCircuit’s ultimate conclusion—that Robins adequately alleged an injury in fact—was correct.”

My own early take on the decision is that while the opinion does not set definitive rules on the types of intangible injuries that are sufficiently concrete to support Article III standing, the opinion goes a long way towards solidifying and clarifying the analytical framework under which statutory standing issues, and Article III standing issues more generally, should be evaluated.  For the time being, it will be up to the lower courts to apply this analytical framework to specific cases.

I’m pleased to announce that I will be chairing the ABA’s Western Regional CLE Program on Class Actions and Mass Torts, now in its third year, on May 27.  This year’s program will be held at the Bar Association of San Francisco’s offices at 301 Battery St San Francisco, CA 94111-3236.  The program starts at noon with lunch and concludes with a cocktail hour.  The event is co-sponsored by the BASF and presented by the Class Actions and Derivative Suits, Mass Torts, Insurance Coverage Litigation, and Securities Litigation Committees of the ABA Section of Litigation.  This year’s topics include:

  • Refuse to Defend at Your Own Risk? An Insurer’s Refusal to Defend and Settlement in Class Actions; When is Settlement Collusive?
  • Class Action Settlements: Trends, Lessons Learned, and Creative New Approaches
  • Takeaways on Forum Non Conveniens and Related Issues in Multi-District Litigation After Air France 447.
  • No Big Law? No Problem? How Small Firm Plaintiff and Defense Lawyers are Managing Some of the Largest Class Action Litigation Matters.

To register and to view the program agenda, click the link below.  Hope to see you there!

http://shop.americanbar.org/ebus/ABAEventsCalendar/EventDetails.aspx?productId=238718207&sc_cid=LTCAD15-G1

A new civil procedure code has come into force in Brazil, and Larissa Clare Pochmann da Silva, Law Professor at Candido Mendes University and long-time friend to ClassActionBlawg.com, has prepared a summary of some of the new procedures that could impact multi-party and collective proceedings in that country.  Co-authored by Aluisio Gonçalves de Castro Mendes, Professor of Complex Litigation and Civil Procedure at Rio de Janeiro State University, the article is entitled Incident of Resolution of Repetitive Demands (IRDR) and Repetitive Appeals in the New Brazilian Civil Procedure Code.  Click the following link to download the article: Repetitive Pleas in the Brazilian New Civil Procedure Code.

The Supreme Court issued its decision today in Tyson Foods, Inc. v. Bouaphakeo, No. 14-1146, a case that many commentators predicted would provide an opportunity for the Court to limit or bar the use of statistical evidence as a substitute for common proof in class actions.  The majority opinion, authored by Justice Kennedy, rejected the invitation to create a “broad rule” limiting the use of statistical evidence, however.  Instead, the Court offered practical guidance on the situations in which statistical evidence may or may not be appropriate.  The relevant portion of the opinion is short and succinct, so I have quoted it in its entirety below:

[P]etitioner and various of its amici maintain that the Court should announce a broad rule against the use in class actions of what the parties call representative evidence. A categorical exclusion of that sort, however, would make little sense. A representative or statistical sample, like all evidence, is a means to establish or defend against liability. Its permissibility turns not on the form a proceeding takes—be it a class or individual action—but on the degree to which the evidence is reliable in proving or disproving the elements of the relevant cause of action. See Fed. Rules Evid. 401, 403, and 702.

It follows that the Court would reach too far were it to establish general rules governing the use of statistical evidence, or so-called representative evidence, in all class-action cases. Evidence of this type is used in various substantive realms of the law. Brief for Complex Litigation Law Professors as Amici Curiae 5–9; Brief for Economists et al. as Amici Curiae 8–10. Whether and when statistical evidence can be used to establish classwide liability will depend on the purpose for which the evidence is being introduced and on “the elements of the underlying cause of action,” Erica P. John Fund, Inc. v. Halliburton Co., 563 U. S. 804, 809 (2011).

In many cases, a representative sample is “the only practicable means to collect and present relevant data” establishing a defendant’s liability. Manual of Complex Litigation §11.493, p. 102 (4th ed. 2004). In a case where representative evidence is relevant in proving a plaintiff’s individual claim, that evidence cannot be deemed improper merely because the claim is brought on behalf of a class. To so hold would ignore the Rules Enabling Act’s pellucid instruction that use of the class device cannot “abridge . . . any substantive right.” 28 U.S.C. § 2072(b).

Those who were hoping for a rule barring statistical evidence as a proxy for common evidence in class actions will no doubt be disappointed, but Justice Kennedy’s opinion does go much further than it had to in beginning to develop standards that will govern resolution of the issue in future cases.  To summarize:

  1. There is no general rule barring the use of statistics to prove class-wide liability in a class action.
  2. The extent to which statistical evidence is allowable in a class action depends on whether the evidence is reliable in proving or disproving the elements of a relevant cause of action.
  3. Statistical evidence is admissible in a class action if it would be admissible in an individual action to prove or disprove elements of a plaintiffs’ claim.
  4. Whether statistical evidence can be used to establish class-wide liability depends on the purpose for which the evidence is being introduced and on “the elements of the underlying cause of action.”

As a final side-note, the decision in Tyson Foods does not appear to have been impacted at all by the recent death of Justice Scalia.  Only two of the eight remaining Justices, Justices Thomas and Alito, dissented.

The Supreme Court issued its opinion today in the first of what will be several class-action-related decisions this term.  As noted in my Supreme Court preview post, the primary issue in Campbell-Ewald Co. v. Gomez, No. 14-857 was whether an unaccepted offer of complete relief to a named plaintiff in a class action had the effect of mooting the plaintiff’s claim, depriving a federal court of Article III jurisdiction.  The Court said no, agreeing with the now unanimous view of the Circuit Courts of Appeals.   Click this link for a copy of the slip opinion.  Justice Kennedy sided with the liberal wing of the Court in supporting Justice Ginsburg’s majority opinion, with Justice Thomas concurring in the judgment.  Perhaps the most interesting thing about the opinion from a practitioner’s point of view is the issue that the majority expressly decline to address despite having been discussed at some length during oral argument:

We need not, and do not, now decide whether the result would be different if a defendant deposits the full amount of the plaintiff ’s individual claim in an account payable to the plaintiff, and the court then enters judgment for the plaintiff in that amount. That question is appropriately reserved for a case in which it is not hypothetical.

 

So, just as we were left with a cliffhanger when the Court decided its previous case involving offers of judgment, Genesis Healthcare Corp. v. Symczyk, we’ll have to stay tuned for the third chapter of the trilogy to find out whether paying the full amount of a plaintiff’s claim into the registry of the Court moots a class action.  Be on the lookout for a preview of this issue at a District Court near you.