Supreme Court breaks the rules to cut classes
By Arthur Bryant, Executive Director
In high school, I knew classmates who broke the rules to cut classes. Unfortunately, five members of the U.S Supreme Court just did the same thing.
After briefing and argument were complete in Comcast v. Behrend and Genesis Healthcare Corp. v. Symczyk, it became clear that — because of their facts — neither case would allow the Court to announce a rule of law or decide any issue that applied to any other case. For that reason, both should have been dismissed as improvidently granted. Instead, the Court’s five-member majority (Chief Justice Roberts and Justices Scalia, Thomas, Alito and Kennedy) came up with a way to overturn the certification of a class or collective action in each case — and only that case.
In Comcast, an antitrust class action, the original question presented was: “[W]hether a district court may certify a class action without resolving ‘merits arguments’ that bear on [Federal Rule of Civil Procedure] 23’s prerequisites for certification, including whether purportedly common issues predominate over individual ones under Rule 23(b)(3).” The Court re-wrote it and ordered the parties to brief “[w]hether a district court may certify a class action without resolving whether the plaintiff class had introduced admissible evidence, including expert testimony, to show that the case is susceptible to awarding damages on a class-wide basis.” But, once they did so and the case was argued, the Court realized that Comcast had not objected to the admissibility of the plaintiffs’ expert testimony in the lower courts; it had waived its right to argue that the evidence was inadmissible.
Rather than dismiss the case, the majority, in a decision written by Justice Scalia, noted the parties had agreed “that to meet the predominance requirement respondents had to show (1) that the existence of individual injury resulting from the alleged antitrust violation (referred to as ‘antitrust impact’) was ‘capable of proof at trial through evidence that [was] common to the class rather than individual to its members’; and (2) that the damages resulting from that injury were measurable ‘on a class-wide basis’ through use of a ‘common methodology.’ ” It then held that the class was improperly certified because the plaintiffs had not shown that. The case was remanded to the lower courts so they could try again.
The dissent, written by Justices Ginsburg and Breyer (and joined by Justices Sotomayor and Kagan), explained in detail why the case should have been dismissed (and why the majority’s decision incorrectly answered the narrow question it reached without adequate notice, argument or briefing). It said, “[T]he opinion breaks no new ground on the standard for certifying a class action . . . In particular, the decision should not be read to require, as a prerequisite to certification, that damages attributable to a classwide injury be measurable ‘on a class-wide basis.’ “
The dissent noted, “The Court’s ruling is good for this day and case only.”
In Genesis, a collective action under the Fair Labor Standards Act, the Court “granted certiorari to resolve whether such a case is justiciable when the lone plaintiff’s individual claim becomes moot.” But, after the Court did so, the Solicitor General, among others, pointed out that that plaintiff’s claim had not become moot: the defendant had made an offer to settle the plaintiff’s claims under Federal Rule of Civil Procedure 68. The plaintiff had not responded to it. Rule 68 says an “unaccepted offer is considered withdrawn.” So the plaintiff’s claim was never satisfied, was not moot, and should not have been treated as moot by the district or appeals court. The case did not present the question the Court had accepted it to answer.
Instead of dismissing the case because plaintiff’s claim was not moot, the majority opinion by Justice Thomas said, “The Court of Appeals concluded that respondent’s individual claim became moot following petitioners’ Rule 68 offer of judgment. We have assumed, without deciding, that this is correct.” It then held that, based on that assumption, the case was not justiciable as an FLSA collective action.
Justice Kagan’s dissent makes mincemeat of this approach. It explains, in extremely entertaining fashion, why the case should have been dismissed: “[T]he majority’s decision — founded as it is on an unfounded assumption — [has] no real-world meaning or application . . . [It is] the most one-off of one-offs, explaining only what (the majority thinks) should happen to a proposed collective FLSA action when something that in fact never happens to an individual FLSA claim is errantly thought to have done so.” In footnote 2, it says, “For similarly questionable deployment of this Court’s adjudicatory authority, see Comcast Corp. v. Behrend (observing in dissent that ‘[t]he Court’s ruling is good for this day and case only’).”
These are not the first cases in which the Court’s five-member majority went beyond the question presented and issued a decision favorable to corporate interests, as Jeffrey Toobin writes in his New Yorker article, “Money Unlimited: How Chief Justice John Roberts orchestrated the Citizens United decision.” The Court should not affect anyone but the parties involved; Comcast and Genesis will only add to the perception of this Court as “The Corporate Court.” (See, for example, Alliance for Justice, People for the American Way and the Huffington Post.)
They also bespeak a disturbing animosity towards collective and class actions, and a willingness to ignore long-established, appropriate limitations on the Court’s role. They suggest that, if a corporate defendant can persuade the Court to review a lower court ruling certifying a class or collective class action, the majority will find a way to prevent it from proceeding, even if the case does not present the question the Court was supposed to decide.
That is no way to run a system of justice — or ensure that justice is done.