In recent years, the Supreme Court has decided a number of cases that, alone and certainly in the aggregate, have significantly impacted the ability of plaintiffs to initiate and maintain class actions.

By and large, these decisions have opened up new avenues for companies to prevent plaintiffs from commencing class actions in the first place or for defendants successfully to challenge class certification. In particular, and as discussed previously by the authors,1 the Court in a series of decisions has upheld the ability of contracting parties to eliminate class procedures in arbitration; raised the bar for plaintiffs to obtain class certification by requiring them to prove each of the Rule 23 prerequisites at the class certification stage; and barred courts from applying the federal securities law to predominantly extraterritorial investors and transactions, thereby eliminating such class actions.

As explained in the Court’s opinions, these decisions were premised on an adherence to congressional intent as reflected in statutory text, which to the Court overrode other considerations that might have warranted a contrary result.

Originally published in Bloomberg BNA's Class Action Litigation Report, 15 CLASS 1400, 12/12/2014.