Feeds:
Posts
Comments

Posts Tagged ‘smith v. bayer’

The award-winning U.S. Supreme Court blog SCOTUSblog is presenting a symposium on recent Supreme Court developments in the area of class actions that you won’t want to miss.  Click here for an introduction to the symposium and here to see a list of the various contributions as they are released. I’m extremely honored to be listed among the other fine contributors to the series.

Read Full Post »

It’s not too late to sign up for tomorrow’s Strafford Publications Webinar Class Certification After Dukes, Bayer and Halliburton Rulings.   As a preview, here is a copy of the written materials for my portion of the presentation, Opposing Class Certification After Dukes, Bayer and Halliburton.  I hope you can make it.

 

Read Full Post »

For those of you who simply can’t get enough of the Supreme Court’s recent class action rulings, I will be speaking in an upcoming live phone/web seminar sponsored by Strafford Publications entitled “Class Certification After Dukes, Bayer and Halliburton Rulings.”   The Webinar  is scheduled for Tuesday, August 30, 1:00pm-2:30pm EDT.   Here is a summary:

The Supreme Court’s watershed Dukes v. Wal-Mart ruling set new standards for Rule 23(a) class certification and provided guidance to the level of merits inquiry appropriate at the certification stage. It also clarified when a claim for monetary relief can be made under Rule 23(b). While Dukes is a shift in defendants’ favor, the Court refused in Smith v. Bayer to curtail relitigation of class actions in parallel state court litigation. Federal courts may not enjoin state courts from considering certification when a federal court has denied certification of the same class. In Erica John Fund v. Halliburton, the Court held that loss causation is not a prerequisite to class certification in a securities action. However, the Court did not address the existing circuit court divergence on whether a court should examine evidence of price impact at the certification stage. My fellow panelists and I developed this program to analyze three key Supreme Court rulings, Dukes, Bayer and Halliburton and their impact on current class certification jurisprudence. We will discuss how plaintiff and defendant counsel can best leverage or overcome the impact of these rulings in certification proceedings. We will offer our perspectives and guidance on these and other critical questions: What impact will Dukes have on the use of statistics and expert testimony in support of class certification? How will commonality and numerosity be applied after Dukes? What guidance, if any, does the Bayer case provide regarding relitigating competing class actions where class certification has already been granted? In light of Halliburton, should a district court examine evidence of price impact at the class certification stage, and if so, who has the burden of proof? After our presentations, we will engage in a live question and answer session with participants — so we can answer your questions about these important issues directly. I hope you’ll join us.

For more information or to register, visit the Strafford website at this link.

Read Full Post »

Earlier today, the Supreme Court issued its third of four class action-related decisions for the October 2010 term.  In Smith v. Bayer Corp., No. 09-1205, the Court held that a federal court exceeded its authority when it issued an injunction preventing a state court from considering whether to certify a class on claims in which the federal court had previously denied class certification. 

Justice Kagan’s opinion involves a fairly straightforward academic analysis of the “re-litigation exception” to the federal Anti-injunction Act and principles of issue and claim preclusion: where a state court applies a different class certification standard than the standard applicable under FRCP 23, the issue decided in the federal action on class certification is not the same as the one to be decided in the state court proceeding.

However, the practical impact of the decision is that a plaintiffs’ lawyer who is unsuccessful in seeking class certification in federal court can try again in a state that applies a different class certification standard.  Of course, the successive class action is potentially subject to removal under the Class Action Fairness Act (CAFA), but if one of the exceptions to CAFA applies, such as the home state or local controversy exception, the Court’s decision paves the way for multiple bites at the class certification apple.

Read Full Post »

Earlier today, the U.S. Supreme Court held oral argument in  Smith v. Bayer, which raises the question of a federal court’s power to enjoin a state court from considering class certification after the federal court had previously denied certification.  A copy of the argument transcript is available for download at the Supreme Court’s website.  Some of the key lines of inquiry from the Court can be summarized as follows:

  • Are there differences between FRCP 23 and West Virginia Rule 23 that should have prevented the application of issue preclusion?
  • Even if the elements of the two rules are substantially the same, does the fact that the West Virginia courts take a more favorable “tone” toward class certification mean that they are different for the purposes of an issue preclusion analysis?
  • Does an individual have a protected due process right to be heard on a procedural issue, such as the appropriateness of class certification, as opposed to a substantive right or cause of action?
  • Does it matter whether the plaintiff in the second case could have intervened in the first one?
  • Why isn’t it sufficient that the state court in a subsequent case can decide to apply issue preclusion, as opposed to the federal court enjoining the state court from even considering the question?
  • Does the absense of a formal judgment mean that the relitigation exception of the Anti-injunction Act cannot apply to class certification orders at all?
  • Can the plaintiff and his or her counsel who unsuccessfully sought class certification in one case be considered sufficiently representative of other absent class members and their counsel to satisfy the identity of interest requirement of issue preclusion?

Although most of the questions involved how the case should be decided under express statutory language and established legal principles, it seems reasonable to expect that the Justices’ views on federalism, and the proper balance between federal and state power, will flavor the Court’s decision.  The federalism theme is one that counsel for the plaintiffs, Richard A. Monohan, fell back to on several occasions during the argument.  Perhaps not coincidently, two of the members of the Court’s conservative bloc, Justice Scalia and Chief Justice Roberts, asked some of the more biting questions implicating the fairness of precluding a new party from re-litigating an unsuccessful attempt at class certification by a different party.

To this point, the Roberts Court’s direction on issues of federalism has been less than clear (see this September 2010 National Law Journal article by Marcia Coyle).  This case offers the opportunity to start charting a more specific course.  At the same time, this is the kind of case that can foster unpredictable alliances within the Court.  For example, the states’ rights supporters may find themselves joining forces with one or more Justices who see unfairness in preventing absent class members from having their day in court on the issue of class certification. 

On the other hand, predicting the outcome or rationale of Supreme Court cases is a lot like predicting the NFL playoffs.

Read Full Post »