[author: D. Matthew Allen]
Robert Klonoff, Dean of the Lewis & Clark Law School, an associate reporter on the American Law Institute’s Principles of the Law of Aggregate Litigation, and all-around good guy, has written a provocative article on “The Decline of Class Actions.” The article will be published in a forthcoming issue of the Washington University Law Review, but you can read it now at the following website: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2038985
In his article, Dean Klonoff attributes the decline of the class action device to the following factors:
First, many courts now require that plaintiffs prove substantial portions of their cases on the merits at class certification. Second, several of the class certification requirements (class definition, numerosity, commonality, adequacy of representation, Rule 23(b)(2), and Rule 23(b)(3), are now considerably more difficult to establish. Third, a number of courts have rejected class settlements by rigidly applying the requirements for class certification, even though the settlement eliminates the need for a trial. Fourth, a number of courts have essentially nullified so-called issues classes under Rule 23(c)(4) by requiring courts to examine whether the case as a whole satisfies the predominance requirement of Rule 23(b)(3). Finally, the Supreme Court has upheld, against unconsionability challenges, binding arbitration clauses that prohibit resolution of disputes on a classwide basis.
Dean Klonoff advocates that courts, rule makers, and Congress return Rule 23 “to a more balanced approach.” From where we sit, the factors he describes, roughly in place since the mid-1990s, actually do restore balance to the judiciary’s approach to class action litigation, after an extensive period of undisguised activism, going back into the 1970s, resulting in plaintiff-oriented standards, rulings, and settlements, all without the safeguard of appellate review. We are glad those days (for the most part) are over. Nonetheless, the article provides an excellent historical overview of where we are and from where we have come; we find it worthy of perusal.