A New Resource to the Fractured Class Action

• Author: Stephen Carr
• Pages: 32-32

Published in Litigation News Volume 45, Number 3, Winte r 2020. © 2020 by the Ame rican Bar Associati on. Reproduced with p ermission. All rights r eserved. This in formation or any por tion thereof may no t be copied or disseminate d in any

form or by any means or sto red in an electronic da tabase or retrieval sy stem without the ex press writt en consent of the Amer ican Bar Associatio n.

32 | SECTION OF LITIGATION

BOOK REVIEW

ny assessment of the U. S. Supreme Court’s most

important (and most cont roversial) procedural

decisions in recent ye ars would have to include

a large number of class ac tion decisions. Cases

such as Walmart v. Duk es and Com cast v.

Behrend have been widely recogn ized as revolutionary (by

their critics a nd supporters alike) and spawned volumes of

follow-on cases interpreti ng their contentious holdings.

On top of changes to the cas e law, the Class Action Fai rness

Act (CAFA)— despite being more than a decade old— contin-

ues to be an endless s ource of circuit splits. Just last term , the

Supreme Court resolved a c hallenging question about CAFA’s

removal provisions in Home D epot USA v. Jackson.

This complex and ever- evolving landscape presents seri-

ous challenges to even t he most expert class action law-

yer. Attempting to meet t hat challenge, the ABA Sect ion of

Litigation’s Class Actions & D erivative Suits Committee has

published its Sur vey of Federal Class Ac tion Law: A Circuit-

by-Circuit Analysis. True to its title, the book brea ks down

class action law in each of t he 11 circuit court s of appeal,

as well as the D.C. Circ uit, the Federal Circuit, and t he U.S.

Supreme Court in s eparate chapters.

Each chapter is writ ten by a team of litigators who practice

in the circuit (wit h the exception of the federal circuit, wh ich is

described by a law profess or). These impressively credent ialed

attorneys walk t he reader through the practical is sues that

may arise in litig ating class actions: from jurisdi ctional and

pleading issues to se ttlement and appellate concerns.

Undoubtably the most interes ting section of each chapter

is the introduct ion, which provides an overview of some of

the most import ant recent class action decisions in the c ircuit

and a taste of the circ uit’s personality. These descriptions

lend avor to the legal ana lysis that follows and give outsid-

ers a feel for the persona lity of each circuit.

For instance, we a re informed that decisions in the Tenth

Circuit “tend to take on t he Midwest and Western sensibili-

ties of the region, whe re common sense, pragmatism, and

basic fairness a re often the preferred guideposts for de cision

making over intelle ctualism, idealism, a nd judicial activism.”

While in t he Ninth Circu it, we learn the ci rcuit’s reputation

as a “‘cowboy’ court is mostly u ndeserved.” And the judges

are known for their “colle gial—and comparatively infor-

mal—approach...to dec iding cases.”

The meat of the book—a nd its raison d’être—is the prac-

tical advice th at follows. Each chapter include s sections on

jurisdiction al issues, including recent decision s on CAFA

issues, stand ing, and mootness, and other is sues currently

dividing the ci rcuits. The chapters also include det ailed dis-

A New Resource for the Fractured

Class Action

2020 Sur vey of Federal Class A ction Law: A Circuit- by-Circuit An alysis will be available online

after Februa ry 24, 2020 at ShopABA.org.

cussion of each subsec-

tion of Rule 23, includi ng

certic ation issues for

each type of clas s, and

general case management

issues of interest to ma ny

practitioners.

Additional sections

of the book discus sion

class notice and opt-out

provisions, inte rlocutory

appeals, and set tlements.

While all t hese topics

might merit a treat ise

on their own, in ever y

instance t he authors help-

fully distill the arguments

to a few pithy paragraphs

that overworked l itigators will appreciat e.

As might be sur mised from this overview, the book is not

aimed at those look ing for dense, academic treatments of any

of these issues —rather, it is aimed at anyone feeling over-

whelmed by recent developments i n this fractured area of the

law. That said, even expert s in the area of class action may

be surprised to le arn of the variations in class action prac tice

across the countr y and appreciate a quick reference to impor-

tant decision s.

Stepping back, the pic ture of class actions that emerges

from this book is of i ncreasing diversit y rather than unity.

This conclusion mig ht surprise some—the pur pose of CAFA

was to federalize cl ass actions and Supreme Court decision s

are meant to sett le conicts rather than creat e them. But stu-

dents of civil procedu re are probably not so shocked.

The history of th e federal courts is full of ironie s and

unexpecte d results. Attempts to manipulate neut ral rules of

procedure often play out in u nexpected ways as the situa-

tion on the ground cha nges. Likewise, controversial Supreme

Court decision s have a way of being narrowed from below as

common law judges and lawyer s nd ways to distinguish (and

obfuscate) even the most se ttled legal rules.

Yet, whatever one makes of class act ions as a political

matter, it cannot be de nied that it is one of the most e xciting

areas in which to prac tice. Attorneys already well versed i n

the law of class actions a nd newcomers to the eld alike will

appreciate consulting t his book as a guide for this slippery

subject.

By Stephen Carr, Litigation N ews Associate Editor

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A U.S. SUPREME COURT AND

CIRCUIT-BY-CIRCUIT ANALYSIS

Survey of Federal

Class Action Law

CLASS ACTIONS AND DERIVATIVE SUITS COMMITTEE

2020