That's the name of this short essay by law professor Linda Mullenix on the Supreme Court's recent class-actions decisions in the Amgen, Comcast, and Standard Fire decisions. Here is the abstract:
The
article surveys the Court’s liberal and conservative divide on class
certification issues, giving some support to both the plaintiff and
defense sides of the class action docket. In Amgen, in an opinion by
Justice Ginsburg, a divided Court again saved the fraud on the market
presumption for certification of securities class actions. On the other
hand, in Comcast, in an opinion authored by Justice Scalia, an equally
divided Court found fatal to class certification the failure of proof of
classwide damages for a Rule 23(b)(3) damage action. The Comcast
decision, coupled with a concurrence by Justice Alito, suggests that
there may be at least four votes for the Court to consider the original
fraud on the market presumption announced in the landmark case, Basic v.
Levinson. Although embodying different outcomes, the Amgen and
Comcast decisions both embrace the same litany of core class
certification principles. However, the Court in neither case has
clarified or illuminated further the debate over the extent to which
trial courts may properly assess the underlying merits of class claims
as part of the certification process. Instead, the Court in both cases
deflected the merits conversation into the Rule 23 predominance
requirement. Finally, in Standard Fire Ins. Co. v. Knowles, in an
opinion by Justice Breyer, a unanimous Court agreed that a class
representative could not stipulate to less than the $5 million damage
threshold in order to evade removal under the Class Action Fairness Act
of 2005. A class representative could bind himself, but had no power or
authority to bind absent class members.
