Class actions may be down, but they’re not out.
Yes, the U.S. Supreme dealt a couple of game-changers with AT&T Mobility v. Concepcion and Dukes v. Walmart last term. But a panel of class action litigators, along with state and federal judges, told an audience of about 40 people at Cooley’s headquarters in Palo Alto Tuesday night that it’s unwise to underestimate the ability of plaintiffs’ attorneys to adapt. The seminar was sponsored by the Santa Clara County Bar Association Federal Courts Committee and Cooley.
The landscape for class actions will change, and the numbers may drop -- but they won't go away completely, said Cooley litigation partner Michael Rhodes. "In the real world, plaintiff’s firms are creative,” he said.
Plaintiffs’ attorneys have nine lives, like a cat, said Nancy Fineman, a partner at Cotchett, Pitre & McCarthy in San Francisco. Someone still has to fight for the rights of consumers. “Are we down and bloodied? Absolutely,” she said. “Are we going to keep on fighting? Absolutely.”
The judges on the panel agreed that after the Supreme Court’s recent decisions, it will more critical for lawyers to choose class representatives who can withstand scrutiny and understand the legal issues involved. And they’re predicting attorneys will have to present better evidence backing up their claims earlier in the process. More expert testimony will likely be proffered earlier as well. Because Dukes and Concepcion are changing the game for judges, too.
Northern District Judge Susan Illston said those cases are nudging federal judges to consider the merits of class actions even before a class is certified, something they once went to great pains to avoid. “I just think that we are doing a lot more investigation into merits earlier on than we ever have before,” Illston said.