A Class of Their Own: The Supreme Court’s Recent Take on Class Actions

Supreme Court decisions tend to impact more than just the individuals named in a lawsuit.  Supreme Court Rule 10, the one official written description of factors that may lead to a higher likelihood of a cert grant focuses primarily on areas with inconsistent court decisions across the country. One of the rationales behind this disparate impact theory is to assure that the Court’s decision has diffuse effects that affect more than the population party to the particular lawsuit in question.  Another secondary for the Court to assure its decisions affect a diverse population is by adjudicating cases starting as class actions (and the rules governing them). Class actions by definition involve more than just individual plaintiffs, and so clarifying correct class action procedures can have an exponential outward effect. Although seldom discussed as a distinct area of Supreme Court adjudication, the Court grants cert in multiple cases that started as class action lawsuits each term. Between the 2010 and 2018 terms, the Court decided between five and ten cases starting as a class action per term (these cases were coded based on Supreme Court opinions describing the case origins as class actions).

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The types of class actions lawsuits that eventually are heard by the Supreme Court arise in a multitude of subject areas ranging from consumer actions, to criminal, employment, and securities cases (Westlaw and the Supreme Court Database were both used to help classify subject area. Note that not all cases fell into a classifiable subject area and so some of the analyses below contain fewer than the total number of observations.)  In each of these areas multiple individuals are affected by the same underlying actions.

There are predictable aspects to Supreme Court review in these cases.  Many class actions that the Court reviews, for instance, are heard below by a narrow range of lower courts.

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Since 2010, the 9th Circuit heard over four times as many of these cases as any other appeals court circuit before Supreme Court review.  At the trial court level, the District Court for the Central District of California (part of the 9th Circuit) heard twice as many of these cases as the trial court that heard the next most of these cases. The trial court which heard the second most of these cases was the District Court for the Northern District of California (also part of the 9th Circuit).  The next set of trial courts with three class actions apiece includes another Federal District Court from California – the District Court for the Southern District of California.

The Supreme Court overturns almost 70% of class action decisions made by appeals courts by either reversing or vacating these decisions. The graphs below looks at the Court’s dispositions in these cases in the aggregate as well as by individual courts of appeals.

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The Court, for instance reversed or vacated 22 class actions decided by the 9th Circuit while only affirming five. While the Court did not adjudicate nearly as many class actions from any other appeals circuit, the Court did overturn the majority of class action decisions heard by several other circuits as well. The Court, for example, only vacated or reversed decisions from the 6th Circuit and vacated the one class action it decided after adjudication by the Federal Circuit.

Looking at the Supreme Court’s decisions in these cases based upon the lower Court is only one way of many to slice these cases.  With the various subject areas of these class actions, we can also look at the types of outcomes in these cases and the types of parties the Court ruled for in its decisions.

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While many of the outcomes across subject areas only garnered a decision or two, some of the outcomes and differentials in outcomes are more pronounced. The differentials are also often notable within particular subject areas. For example, the Court between the 2010 and 2018 terms favored the defendant companies in the vast majority of consumer class actions. The Court was much more balanced in securities class actions between ruling for investors and the corporate entity in question.  One of the common outcomes across the board was for the Court to vacate the decision below and consequently to clarify the law for the appeals court. Many of these decisions did not favor either party but left room for the court below to rule on the cases’ merits based on such legal clarification.  We see this propensity to clarify the law in employment class actions where the Court most frequently provided this kind of guidance, but we also see in such cases that the Court ruled in favor of companies more often than in favor of employees.

Different justices have taken more and less of a role in deciding cases beginning as class actions with Justice Ginsburg the clear leader.

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With 19 opinions (10 majority and nine dissents) Ginsburg authored four more opinions in total (all majority opinions) than Justice Breyer who authored the second most of these decisions.  Kennedy had a high ratio of majority to dissenting opinions with eight majority opinions to only one dissent.  Roberts ratio was a bit slimmer than Kennedy’s at four to one (majority to dissenting opinions). Sotomayor was the only justice to author more dissents than majority opinions in these cases with four dissents to three majority opinions.

The justices specialized in different types of resolutions for these cases. When case resolutions were broken into give types: clarifying class action procedures, ruling on jurisdiction, justiciability (whether the Court should hear the case at all), or deciding based on precedent or through statutory interpretation, the justices each appear to have had particular focuses.

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Ginsburg was the leading justice for clarifying class action procedures with four such decisions. A bevy of justices decided one case apiece based on jurisdiction or justiciability factors. Justice Scalia decided the most cases based on past precedent in a given area, while Justice Thomas was the leading justice deciding cases through statutory interpretation [note that not every case neatly fell into one of these categories].

The justices specialized in different class action subject matter as is evident in the graph below.

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Four justices in particular dominated decisions in certain areas of law.  The bulk of Thomas’ decisions were in the employment class action arena where he decided more cases than any of the other justices. Similarly, Justice Scalia decided the most consumer class actions of the justices with five.  Ginsburg decided more securities class actions than any other type with four.  Finally, Kennedy wrote majority opinions in more criminal class actions than any other type and more of this type than any other justice.

Kennedy was also a leader among justices covered in this dataset for another reason.  As with much of the Court’s jurisprudence over the last decade an a half, Kennedy authored the majority opinion in more close split-vote cases in this area than any other justice.

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Scalia also authored more 5-4 and 5-3 decisions than any other type of split vote, while Thomas authored an equal number of majority opinions in 5-4 and unanimous decisions.  The more liberal justices on the Court all tended to author unanimous decisions as this was the most common type of split vote associated with Ginsburg, Breyer, Kagan, and Sotomayor’s majority opinions.

Certain attorneys, especially prominent repeat players before the Supreme Court, most frequently argued these cases.

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The most frequent oral advocates include David Frederick with nine arguments, Tom Goldstein and Paul Clement with eight, and Neal Katyal, Malcolm Stewart, and Carter Phillips with four each.  These attorneys’ specialized within this case set as several argued multiple cases within the same class action subject areas.

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Tom Goldstein and David Frederick argued the most cases in the securities area with five and four arguments respectively.  David Frederick also had two arguments in employment related cases.  One other attorney, Paul Clement, had several arguments in multiple subject areas as he had two arguments in consumer, employment, and securities cases.

With Kennedy now retired, the dimensions of these cases have shifted. No longer will attorneys look to swing Kennedy’s vote in close cases as they will instead have to look towards another justice for decisive votes. Some of the attorneys that argued several of these cases no longer argue before the Supreme Court as frequently, while others still regularly argue multiple cases each term.  Certain trends in the types of cases the Court has heard over the last several terms may help indicate the types of disputes that began as class actions that the Court is likely to hear in upcoming terms.  Areas like employment/arbitration, for example might be high on the list as the Court has seen several of these cases in each of the last two terms.  Other cases that started as class actions are already on the slate for the Court’s 2019 Term.  Among these, one that is already scheduled for argument during the Court’s November 2019 sitting is Retirement Plans Committee of IBM v. Jander. Counsel of record for the petitioners in this securities case is one of the repeat players mentioned above — Paul Clement.  Other such cases are already in the Court’s pipeline.

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