Last week I had the privilege of moderating a discussion at the American Bar Association’s 19th Annual National Institute on Class Actions. The topic was the impact of Supreme Court class action decisions in the lower federal courts. We explored the question whether federal appellate and district courts faithfully follow Supreme Court majority decisions in this arena, or whether some majority decisions are so unpopular that the lower courts navigate around them. Thanks to a terrific faculty, the program seemed well received.
In our discussion, we focused on three Supreme Court cases: AT&T Mobility LLC v. Concepcion, Wal-Mart Stores, Inc. v. Dukes, and Comcast Corp. v. Behrend. A copy of my paper regarding Comcast and its aftermath can be found here. At the conference, I was heartened to hear Professor John Coffee, in his annual survey of recent developments in class actions, suggest that the last word has not been written about the meaning of Comcast, and that plaintiffs’ lawyers may be “whistling past the graveyard.” Time, as it always does, will tell.