The Supreme Court’s “Non-Transsubstantive” Class Action

Brian T. Fitzpatrick, The End of Class Actions?, 57 ARIZ.L. REV.161, 163 (2015) (seeing "every reason to believe that businesses will eventually be able to eliminate virtually all class actions the Supreme Court's recent class action cases all but confirmed that view. 2 In just the last six years, the Supreme Court ratcheted up the requirements for class certification under Rule 23 in Wal-Mart Stores v. Dukes and Comcast v. Behrend, increasing the cost and difficulty of obtaining certification.And, in a series of cases, the Court permitted the use of class action prohibitions in arbitration contracts, thus eliminating a swath of class actions and, often, the underlying claims themselves.The Court's language in these cases also tracked stock arguments against the class action, 3 leaving the distinct impression that the Roberts Court was on a mission to diminish or destroy the class action procedure.But a funny thing happened on the way to the funeral: just as the obituaries for the class action were being written, the Supreme Court issued a series of decisions that breathed new life into it.In Halliburton Co. v. Erica P. John Fund, Inc. (Halliburton II) 4 and Amgen Inc. v. Connecticut Retirement Plans & Trust Funds, 5 the Court reaffirmed the fraud-on-the-market theory, a critical tool in securities class actions.6 In Tyson Foods v. Bouaphakeo, 7 the Court vindicated the use of statistical proof to satisfy Rule 23 requirements, distancing itself from strong suggestions in prior cases that individualized that are brought against them"); Myriam Gilles, Opting Out of Liability: The Forthcoming, Near-Total Demise of the Modern Class Action, 104 MICH.L. REV.373, 375 (2005) (predicting that, "with a handful of exceptions, class actions will soon be virtually extinct"); Charles Silver & Maria Glover, Zombie Class Actions, SCOTUSBLOG (Sept.8, 2011, 10:16 AM), http://www.scotusblog.com/2011/09/zombie-class-actions/[https://perma.cc/W7RU-6LC6](describing the class action's "zombie potential" to survive, but stripped of its capacity to give value to claimants).2 See, e.g., Am.Express Co. v. Italian Colors Rest., 133 S. Ct. 2304, 2309 (2013) (upholding the validity of a contractual waiver of class arbitration); Comcast Corp. v. Behrend, 133 S. Ct. 1426, 1432 (2013) (holding that "[r]espondents' class action was improperly certified under Rule 23(b)(3)"); Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 357 (2011) (concluding that plaintiffs' statistical proof of pay disparity flunked Rule 23(a)(2)'s commonality requirement); AT&T Mobility LLC v. Concepcion, 563 U.S. 333, 336, 352 (2011) (holding that the Federal Arbitration Act preempted a state rule that "condition[ed] the enforceability of certain arbitration agreements on the availability of classwide arbitration procedures").3 See, e.g., Stolt-Nielsen S.A. v. AnimalFeeds Int'l Corp., 559 U.S. 662, 686-87 (2010) (describing the consequences of class action arbitration and litigation).4 134 S. Ct. 2398 (2014).5 133 S. Ct. 1184 (2013).6 See Halliburton II, 134 S. Ct. at 2407 (declining to set aside the rebuttable presumption of reliance that permits securities-fraud plaintiffs to proceed as a class (citing Basic Inc. v. Levinson, 485 U.S. 224 (1988)); Amgen, 133 S. Ct. at 1193 (reaffirming Basic's fraud-on-the-market theory and noting that, while fraud on the market "can be invoked by any Rule 10b-5 plaintiff, the doctrine has particular significance in securities-fraud class actions" since it "facilitates class certification by recognizing a rebuttable presumption of classwide reliance" (citations omitted)).7 136 S. Ct. 1036, 1049 (2016).