Any assessment of the U.S. Supreme Court’s most important (and most controversial) procedural decisions in recent years would have to include a large number of class action decisions. Cases such as Walmart v. Dukes and Comcast v. Behrend have been widely recognized as revolutionary (by their critics and supporters alike) and spawned volumes of follow-on cases interpreting their contentious holdings.
On top of changes to the case law, the Class Action Fairness Act (CAFA)—despite being more than a decade old—continues to be an endless source of circuit splits. Just last term, the Supreme Court resolved a challenging question about CAFA’s removal provisions in Home Depot USA v. Jackson.
This complex and ever-evolving landscape presents serious challenges to even the most expert class action lawyer. Attempting to meet that challenge, the ABA Section of Litigation’s Class Actions & Derivative Suits Committee has published its Survey of Federal Class Action Law: A Circuit-by-Circuit Analysis. True to its title, the book breaks down class action law in each of the 11 circuit courts of appeal, as well as the D.C. Circuit, the Federal Circuit, and the U.S. Supreme Court in separate chapters.
Each chapter is written by a team of litigators who practice in the circuit (with the exception of the federal circuit, which is described by a law professor). These impressively credentialed attorneys walk the reader through the practical issues that may arise in litigating class actions: from jurisdictional and pleading issues to settlement and appellate concerns.
Undoubtably the most interesting section of each chapter is the introduction, which provides an overview of some of the most important recent class action decisions in the circuit and a taste of the circuit’s personality. These descriptions lend flavor to the legal analysis that follows and give outsiders a feel for the personality of each circuit.
For instance, we are informed that decisions in the Tenth Circuit “tend to take on the Midwest and Western sensibilities of the region, where common sense, pragmatism, and basic fairness are often the preferred guideposts for decision making over intellectualism, idealism, and judicial activism.” While in the Ninth Circuit, we learn the circuit’s reputation as a “‘cowboy’ court is mostly undeserved.” And the judges are known for their “collegial—and comparatively informal—approach . . . to deciding cases.”
The meat of the book—and its raison d’être—is the practical advice that follows. Each chapter includes sections on jurisdictional issues, including recent decisions on CAFA issues, standing, and mootness, and other issues currently dividing the circuits. The chapters also include detailed discussion of each subsection of Rule 23, including certification issues for each type of class, and general case management issues of interest to many practitioners.
Additional sections of the book discussion class notice and opt-out provisions, interlocutory appeals, and settlements. While all these topics might merit a treatise on their own, in every instance the authors helpfully distill the arguments to a few pithy paragraphs that overworked litigators will appreciate.
As might be surmised from this overview, the book is not aimed at those looking for dense, academic treatments of any of these issues—rather, it is aimed at anyone feeling overwhelmed by recent developments in this fractured area of the law. That said, even experts in the area of class action may be surprised to learn of the variations in class action practice across the country and appreciate a quick reference to important decisions.
Stepping back, the picture of class actions that emerges from this book is of increasing diversity rather than unity. This conclusion might surprise some—the purpose of CAFA was to federalize class actions and Supreme Court decisions are meant to settle conflicts rather than create them. But students of civil procedure are probably not so shocked.
The history of the federal courts is full of ironies and unexpected results. Attempts to manipulate neutral rules of procedure often play out in unexpected ways as the situation on the ground changes. Likewise, controversial Supreme Court decisions have a way of being narrowed from below as common law judges and lawyers find ways to distinguish (and obfuscate) even the most settled legal rules.
Yet, whatever one makes of class actions as a political matter, it cannot be denied that it is one of the most exciting areas in which to practice. Attorneys already well versed in the law of class actions and newcomers to the field alike will appreciate consulting this book as a guide for this slippery subject.
Stephen Carr is an associate editor for Litigation News.
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