Page 5 - Commercial Litigation

NYLJ.COM |
Commercial Litigation | MONDAY, AUGUST 8, 2016 | S5

in class-action suits have changed Dow’s risk Microsoft v. Baker, No. 15-457 (cert granted the court found class plaintiffs’ representa- to the Supreme Court until they have more

assessment of the situation.”14
Jan. 15, 2016). In this case, the Supreme Court tive evidence reliably established the average clarity on its future make up.
Second, the court’s appetite for granting will decide whether a federal court of appeals time employees at a pork processing plant •••••••••••••••••••••••••••••
certiorari in class action cases may have has jurisdiction to review an order denying spent donning protective gear. The court
diminished, at least until the court once class certiication after the named plaintiffs explained that this would have been a reliable 1. 564 U.S. 338 (2011).
2. 133 S. Ct. 1426 (2013).
again has nine members. In late February, voluntarily dismiss their individual claims means of establishing the hours worked by 3. 563 U.S. 333 (2011).
the court denied class action defendant Direct with prejudice. Thus, the court will take up an individual employee if used in individual 4. 133 S. Ct. 2304 (2013).
Digital’s petition for writ of certiorari in a case at least one class action issue next term.
actions because, unlike the class members 5. 564 U.S. 338. Notably, there was an easy way for
that would have allowed the court to clarify Third, in at least one case, the court in Wal-Mart, the employees in Tyson Foods the Supreme Court to resolve this case more narrowly:
whether class plaintiffs must show that class appears to have retreated from positions each worked in the same facility, performed The Wal-Mart plaintiffs had sought certiication under Rule 23(b)(2), even though they were primarily seeking
damages, not injunctive relief. The court unanimously
members can be ascertained in a reliable and Justice Scalia staked out in a seminal class the same work, and were paid under the same agreed that the case should have been brought under
administratively feasible manner.15 In April, action decision—although Justice Scalia’s policy. However, despite Justice Kennedy’s Rule 23(b)(3) instead—which means that the majority
the court declined to hear an appeal concern- anticipated dissent in this case would not attempt to square Wal-Mart and Tyson Foods, did not need to address the commonality issue at all.
6. Id. at 350 (internal quotation marks omitted) (quot-
ing whether the Due Process Clause prohibits have changed the outcome. In Tyson Foods the Supreme Court appears to be taking a ing Richard A. Nagareda, “Class Certiication in the Age
state courts from certifying classes based v. Bouaphakeo, the Supreme Court deviated more relaxed view of the use of representa- of Aggregate Proof,” 84 N.Y.U. L. Rev. 97, 132 (2009)).
on “Trial by Formula” (essentially, whether from the course Justice Scalia set in Wal-Mart, tive evidence in class actions.
7. Id. at 367.
Justice Scalia’s reasoning in Wal-Mart applies and rejected a broad categorical exclusion 8. Id.
to state actions).16 Both cert petitions had of statistical sampling and representative 9. 133 S. Ct. at 1432-33.
10. See, e.g., In re Whirlpool Front-Loading Washer Prod-
What the Future Holds
ucts Liab. Litig., 722 F.3d 838, 860 (6th Cir. 2013) (“Where de-
been closely watched and the Chamber of evidence in class actions.19 Writing for a 6-2 terminations on liability and damages have been bifurcat-
Commerce among others had urged the High majority, Justice Kennedy stated that Wal-Mart Predicting the future direction of the ed, the decision in Comcast . has limited application.”).
Court to take up their review. Finally, in May, “does not stand for the broad proposition Supreme Court is never easy, but it is par- 11. 563 U.S. 333.
12. 133 S. Ct. 2304.
the court passed up an opportunity to clarify that a representative sample is an imper- ticularly dificult to do so with a vacancy 13. Id. at 2309.
whether plaintiffs have standing to sue based missible means of establishing classwide on the court that looks likely to go unilled 14. Jef Feeley & Greg Stohr, “Scalia’s Death Prompts
on statutory violations where plaintiffs argu- liability.”20 Kennedy explained that whether until after November’s election. One thing Dow to Settle Suits for $835 Million,” Bloomberg, Feb.
ably suffer no concrete harm, an important such evidence is admissible is not based on is certain though: Whoever replaces Justice 26, 2016, available at http://www.bloomberg.com/news/
question in consumer privacy class actions.17 the form of the proceeding, i.e., class versus Scalia will be hard pressed to do more than articles/2016-02-26/dow-cites-scalia-s-death-in-settling- urethanes-case-for-835m.
Rather than attempt to resolve this question, individual action, but whether the evidence is he did to combat the proliferation of class 15. Petition for a Writ of Certiorari, Direct Digital v.
Mullins, No. 15-549 (U.S. Oct. 26, 2015).
the court remanded the matter to the Ninth reliable for the purpose for which it is intro- actions. Consequently, at least in the near 16. Petition for a Writ of Certiorari, Wal-Mart Stores v.
Circuit for further analysis of the injury-in- duced.21 If the representative evidence could term, class plaintiffs will be more likely to take Braun, No. 14-1123 (U.S. March 13, 2015).
Spokeo v. Robins
fact element of the standing requirement. To have sustained a jury inding of liability in their chances before the Supreme Court in the 17. , 136 S. Ct. 1540 (2016).
18. Id. at 1555 (2016) (“I part ways with the Court,
many, including Justice Ginsberg, the court an individual action had each class member belief that whoever comes next can only be however, on the necessity of a remand to determine
appeared to be punting on the issue.18
brought such an action, then it is a permis- more sympathetic than Justice Scalia. Class whether Robins’ particularized injury was ‘concrete.’”).
However, shortly prior to Justice Scalia’s sible means of establishing liability in a class defendants, on the other hand, may take their 19. 136 S. Ct. 1036 (2016).
passing, the Supreme Court granted cert in
action as well. In Tyson Foods, for instance,
cue from Dow Chemical and avoid resorting
20. Id. at 1048.
21. Id.

.
Leverage the right resources to make your case the strongest it can be

Friedman’s Forensic Accounting, Litigation Support
and Valuation Services (FLVS) professionals possess

expertise in areas that span matrimonial dissolution,
Harry Steinmetz, CPA, CIRA, CFE, Partner
bankruptcy, intellectual property, and more. Holding
an array of advanced certiications and assisted by 1700 Broadway
New York, NY 10019
the irm’s accounting, audit, and tax professionals,
[email protected]
they can tackle the most complex assignments.
212.842.7670

Your livelihood, empowered.

New York New Jersey Pennsylvania Beijing friedmanllp.com

@ 2016 Friedman LLP. All rights reserved.
[email protected] | 877.538.1670
An Independent Member Firm of DFK with ofices worldwide.