The U.S. Supreme Court has already granted review on one class action law issue as described in my June 26, 2012 post. In Comcast Corp. v. Behrend, No. 11-864, the Court granted certiorari on “[w]hether a district court may certify a class action without resolving whether the plaintiff class has introduced admissible evidence, including expert testimony, to show that the case is susceptible to awarding damages on a class-wide basis.”
Will the Court also take up other class action issues in the next Term? That remains to be seen, but SCOTUSblog has reported on other class action cases set for consideration at the Court’s September 24th conference, its first conference of the new Term, which typically results in a significant number of grants of certiorari. Here are the issues presented in the petitions SCOTUSblog lists as petitions to watch:
- Missouri Title Loans, Inc. v. Brewer, No. 11-1466: “(1) Whether the Federal Arbitration Act (‘FAA’) preempts state law finding an arbitration agreement to be unconscionable when the plaintiff cannot vindicate her statutory rights without a class action; and (2) whether the Supreme Court of Missouri, on remand from the Supreme Court, contravened the FAA by again refusing to enforce Missouri Title Loans’ arbitration agreement, this time based upon alleged evidence submitted by the plaintiff aimed at substantiating the very public policy arguments that were held to be preempted in AT&T Mobility v. Concepcion.”
- The Standard Fire Ins. Co. v. Knowles, No. 11-1450: “Whether, after Smith v. Bayer, when a named plaintiff attempts to defeat a defendant’s right of removal under the Class Action Fairness Act of 2005 by filing with a class action complaint a ‘stipulation’ that attempts to limit the damages he ‘seeks’ for the absent putative class members to less than the $5 million threshold for federal jurisdiction, and the defendant establishes that the actual amount in controversy, absent the ‘stipulation,’ exceeds $5 million, the ‘stipulation’ is binding on absent class members so as to destroy federal jurisdiction.” (Disclosure: I am counsel of record in this case.)
- Zurn Pex v. Cox, No. 11-740: “When a party proffers expert testimony in support of or in opposition to a motion for class certification, may the district court rely on the testimony in ruling on the motion without conducting a full and conclusive examination of its admissibility under Federal Rule of Evidence 702 and this Court’s decision in Daubert v. Merrell Dow Pharmaceuticals, Inc.?” For more on the Eighth Circuit’s decision in this case, see my July 14, 2011 post. It seems possible the Supreme Court might hold this petition pending its decision in Comcast Corp. v. Behrend.