Class Action

More U.S. Supreme Court cases to watch

By Kimberly A. Kralowec

Last week I mentioned Dukes and Concepcion, now pending before the U.S. Supreme Court, as class action cases to watch in 2011.  Here are three more U.S. Supreme Court cases involving class certification issues to be aware of:

• Smith v. Bayer Corp., no. 09-1205 (U.S.).  The Supreme Court granted cert. in this case on September 28, 2010 and it will be argued today (January 18, 2011).  The case addresses the extent to which a federal court, applying the Anti-Injunction Act (28 U.S.C. § 2283), may prohibit a class action case from proceeding in state court if class certification has already been denied in federal court.  The Eighth Circuit affirmed such an injunction in In re: Baycol Products Litigation, 593 F.3d 716 (8th Cir. 2010).  (The Seventh Circuit recently addressed a similar issue under the All Writs Act (28 U.S.C. § 1651(a)) in Thorogood v. Sears, Roebuck and Co., 624 F.3d 842, rehearing denied, 627 F.3d 289 (7th Cir. 2010).)  Briefs may be found at the SCOTUSblog page for the case.


• Erica P. John Fund, Inc. v. Halliburton Co., no. 10-568 (U.S.).  The Supreme Court granted cert. in this securities fraud case about ten days ago, on January 7, 2011. These are the issues as stated in the cert. petition:

(1) Whether the Fifth Circuit correctly held, in direct conflict with the Second Circuit and district courts in seven other circuits and in conflict with the principles of Basic v. Levinson, 485 U.S. 224 (1988), that plaintiffs in securities fraud actions must not only satisfy the requirements to trigger a rebuttable presumption of fraud on the market, but must also establish loss causation at class certification by a preponderance of admissible evidence without merits discovery; (2) whether the Fifth Circuit improperly considered the merits of the underlying litigation, in violation of both Eisen v. Carlisle & Jacquelin, 417 U.S. 156 (1974), and Federal Rule of Civil Procedure 23, when it held that a plaintiff must establish loss causation to invoke the fraud-on-the-market presumption.

The Fifth Circuit's opinion is Archdiocese of Milwaukee Supporting Fund, Inc. v. Halliburton Co., 597 F.3d 330 (5th Cir. 2010).  Links via SCOTUSblog's case page.

• Philip Morris USA, Inc. v. Jackson, no. 10-735 (U.S.). I previously reported that in September, Justice Scalia issued an order in this case staying enforcement of a $240 million judgment entered in Louisiana state court in a class action against the tobacco industry.  In the order, Justice Scalia suggests that the full court is likely to take up the case.  The cert. petition states the question presented as follows:

  Whether the Due Process Clause prevents state courts from employing the class-action device to eliminate fundamental substantive and procedural protections that would otherwise apply to adjudications of class members? individual claims.

  A number of conservative organizations have already filed amicus curiae briefs.  The response to the cert. petition is due on February 2, 2011.  If the Supreme Court takes up this case, five new opinions involving major class action issues will soon be handed down.

Full post as published by The UCL Practitioner on January 18, 2011 (boomark / email).