The National Institute on Class Actions: Rule 23 and its Discontents

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This week I had the privilege of serving as a panelist at the ABA’s 16th Annual National Institute on Class Actions.  This year’s’ program, like last year’s, was organized and moderated by Dan Karon, a Cleveland-based lawyer with a flair for showmanship who makes the event not only highly informative but also lively and entertaining.  With the help of a stellar ABA staff and excellent faculty, Dan once again produced an outstanding program.

For my money, the highlight of each year’s Institute is the opening presentation by Professor Jack Coffee of Columbia Law School concerning the past year’s developments in class action law and procedure.  The Institute has included Professor Coffee’s lecture every year since its inception.  This year, for the first time, he shared the hour with Professor Alexandra Lahav, a member of the faculty of the University of Connecticut Law School.  The two professors discussed the class action cases on this year’s Supreme Court docket, as well as several important federal appellate decisions from the past year.  The rest of the faculty included other academics, judges (perhaps most notably Judge Lee Rosenthal, former Chair of the Civil Rules Committee and of the Judicial Conference Committee on the Rules of Practice and Procedure), and several experienced class action lawyers from both the plaintiffs’ and defendants’ bars.

The panel discussions at the Institute always feature lively debates about a variety of timely topics.  My panel’s topic was class definitions (mentioned briefly in my 9/10/12 post), the critical but too often overlooked feature of every class action complaint and proposed class certification order.  Other topics included emerging trends in Rule 23(b)(2) class actions, litigating class cases alongside opt-outs in multi-district litigation, privacy class actions, and managing class-action experts.

Last year’s Institute followed on the heels of the Supreme Court’s decisions in AT&T Mobility LLC v. Concepcion, and Wal-Mart Stores, Inc. v. Dukes (see the sidebar for links to these cases).  Those cases were discussed at length last year, and continued to cast their shadow in this year’s program.  Professors Coffee and Lahav discussed the past year’s cases affected by the Concepcion and Wal-Mart rulings, and Wal-Mart themes popped up in many of the panels’ discussions.

The mood among the plaintiffs’ lawyers was different from last year, however.  Last year’s program was punctuated with recurrent grumblings of the plaintiffs’ bar about the Supreme Court’s groundbreaking decisions and their effects on class action practice.  This year’s program saw few remnants of last year’s downbeat mood.  If anything, the program once again revealed the resilience of the plaintiffs’ bar as they look for new and creative ways to overcome procedural obstacles and continue to file class actions against a variety of industries raising a variety of claims, as well as the determination of the defense bar to defeat meritless and non-certifiable suits.

Over the years that I have done battle in the class actions arena, I have found the National Institute to be an invaluable program for keeping abreast of trends and developments in class action filings, strategies and decisions.  Thanks to the creativity and hard work of Dan Karon, the experience and insights of the diverse faculty, and the organizational talent of the ABA staff, this year was no exception.