Last week I had the good fortune to attend the ABA’s Institute on Class Actions in New Orleans. It’s usually a great combination of legal talent, and it’s noted for the depth and quality of its panels. Among this year’s highlights:
- Professors Coffee & Lahav’s annual review of class action trends. A few years ago, I panned the memo they used in 2012 as overly inclusive and out of date. I’m happy to say that both this year’s memo and presentation were tightly focused on events from 2014 and 2015, with only a few additional cases discussed for necessary context. In particular, Professor Coffee’s discussion of fee-shifting and Professor Lahav’s update on commonality were very useful. Hopefully, they’ll make the paper available on SSRN.
- An excellent panel, hosted by Fredrick Burnside and including appellate lawyer Ben Gould, discussed a recent tactic by plaintiffs in the 2d and 9th Circuits to secure appellate review of a class action denial: the losing plaintiff can just dismiss her case with prejudice, and then appeal the dismissal. (Previously.) Microsoft, at least, has appealed the question of whether plaintiffs can do this to the Supreme Court. Given some of the more interesting questions the tactic raises (most importantly: if the court reverses the denial of certification, who represents the class on remand?) it will be interesting to see if the Court takes it up.
- Another excellent panel on Campbell-Ewald Corp. v. Gomez featured, among other things, Deepak Gupta graciously eating crow over his recent (pre-argument) prediction that this case would be an easy win for the plaintiffs, and a very interesting discussion about whether the “right to aggregate” is part of the relief that a plaintiff seeks in a class action.
- There were also quality panels on the role of compensation in class actions, the surprising rise of the class action trial, and the question of whether the Supreme Court’s class action jurisprudence really matters at the trial court level. All provided excellent food for thought, and will likely fuel more posts in the next few months.