Academic highlight: Gilles and Friedman on the future of class actions
on Sep 5, 2012 at 10:19 am
The Supreme Court has decided a number of cases in recent years curtailing the use of class actions. Most notably, the Court’s decision in Wal-Mart v. Dukes adopted a narrow interpretation of the commonality requirement in Federal Rule of Civil Procedure 23(a), and its decision in AT& T Mobility v. Concepcion upheld class action waivers in arbitration agreements. In a recent article in the University of Chicago Law Review, After Class: Aggregate Litigation in the Wake of AT&T Mobility v. Concepcion, Myriam Gilles and Gary Friedman discuss the future of aggregate litigation in light of these cases.
Gilles and Friedman believe that at least a few plaintiffs will be able to challenge class action waivers despite Concepcion, but conclude that “most class cases will not survive the impending tsunami of class action waivers.” They then suggest that the resulting enforcement gap be filled by private attorneys general working together with plaintiff’s counsel, and analyze the feasibility and benefits of such a system. These two class action experts combine a cogent analysis of the likely impact of these precedents with an interesting proposal for enforcement of class-based rights going forward. The article is well worth reading for those interested in the future of class actions in the wake of these recent Supreme Court decisions.