The Top 10 Class-Action-Related Developments Of 2017

2017 was a relatively quiet year for major class action news, especially in the Supreme Court, which addressed only a handful of cases that might have an impact on class actions and reached decisions only in a couple of those cases. However, there were at least enough noteworthy developments to put together a top 10 list. Here are my top 10 class-action-related developments of 2017:

1. Supreme Court Holds Class Certification Denials Not Immediately Appealable Following Voluntary Dismissal

   In Microsoft Corp. v. Baker, 137 S. Ct. 1702 (2017), the Court held that a plaintiff's act of voluntarily dismissing individual claims following a denial of class certification did not entitle the plaintiff to immediately appeal the class certification ruling. The Court's decision closed a loophole that some circuits had recognized to allow plaintiffs to seek immediate mandatory appeal of an adverse class certification decision, even though defendants are entitled only to discretionary review of an order granting class certification. The Court's decision means that discretionary review under Rule 23(f), Federal Rules of Civil Procedure, is the only vehicle for appealing a federal district court's class certification order, regardless of whether the appellant is a plaintiff or a defendant.

   For an excellent summary of the Baker decision, see this Aug. 9, 2017, write-up by Andrew Serrao.

2. Supreme Court Tackles Tolling Effect of Class Actions

   One key area affecting class actions in which the Supreme Court showed interest is the tolling effect of a pending class action on statutes of limitation or repose, often referred to as American Pipe tolling. In June, the Court decided CalPERS v. ANZ Securities, Inc., 137 S. Ct. 2042 (2017), in which it held that suits by opt-outs to a class action under the Securities Act of 1933 were time-barred if their individual claims were not brought within the three-year statute of repose applicable to claims under Section 13 of the act and that American Pipe tolling did not apply.

   More recently, the Court granted certiorari in China Agritech, Inc. v. Resh, __ S. Ct. __, 2017 WL 4224769 (Dec. 8, 2017), in which it is expected to decide whether American Pipe tolling applies to toll subsequent class action claims, rather than simply tolling the individual claims of the putative members of an earlier class action.

3. Neil Gorsuch Sworn in to Replace Antonin Scalia on Supreme Court

   Before his death in 2016, Justice Scalia had emerged as an outspoken skeptic of class actions, authoring opinions in cases such as Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011), and Comcast, Inc. v. Behrend, 569 U.S. 27 (2013), in which he criticized with colorful and oftentimes caustic language the procedural shortcuts that lower courts had taken in certifying class actions, as well as opinions such as AT&T Mobility LLC v. Concepcion, 563 U.S. 333 (2011), which have had the effect of significantly curtailing the types of lawsuits that can proceed as class actions at all. Before the election of President Trump in November 2016, it appeared that Scalia's voice would be replaced by that of a jurist with a more liberal philosophy. But that changed after Senate Republicans blocked the nomination of President Obama's nominee, D.C. Circuit Judge Merrick Garland, and then Trump won the election and nominated a fellow textualist and avowed admirer of Scalia to replace him on the Court.

   Conventional wisdom says that Gorsuch should follow a consistent approach to Scalia's on both class-action-related issues. But history has shown time and time again that each new member of the Court develops his or her own voice, and it remains to be seen whether Gorsuch will carry Scalia's torch as the Court's most outspoken class-action skeptic.

4. Federal Bill Curtailing No-injury Class Actions Passes the House, Then Stalls

   In March 2017, the U.S. House of Representatives passed H.R. 985, titled the Fairness in Class Action Litigation and Furthering Asbestos Claim Transparency...