Here are my highlights from the second day of DRI’s 2017 Class Action Seminar:
Class Action Waivers in Employment Agreements (Neal Katyal of Hogan Lovells)
Neal Katyal is a leading Supreme Court advocate and is litigating one of several cases involving class action waivers in employment agreements that will be argued in the Court early next Term. He offered some general thoughts on Supreme Court advocacy and how it differs from that in the courts of appeals. The Court is testing the logical limits of positions, focusing more on what the law should be as opposed to what the law is. It is thus helpful to have a broader understanding of what individual justices think the law is all about and try to move the law and your argument in the direction that fits with your client’s position. The central question in the upcoming cases involves the interplay between two federal statutes — whether the National Labor Relations Act supersedes the Federal Arbitration Act. The Solicitor General’s office has flipped its position to the employer side after President Trump took office, but the National Labor Relations Board is expected to remain on the other side. The employer-side position focuses on an argument that the FAA’s savings clause does not apply when two federal statutes are at issue; it applies only if the other applicable law is state law. The employers also argue that under the Court’s decision in AT&T v. Concepcion, the savings clause does not apply to the fundamental aspects of arbitration. The employees argue that the savings clause applies based on illegality, and that the arbitration provision is illegal under the NLRA. This is an important case to watch next Term.
Rule 23 Amendments: What Comes Next? (Scott Burnett Smith of Bradley Arant and Judge Robert M. Dow, Jr. of the Northern District of Illinois)
This conversation focused on the work of the Rule 23 subcommittee of the Judicial Conference Advisory Committee on Civil Rules on proposed amendments to Rule 23. Judge Dow chairs that subcommittee. The subcommittee has endeavored to prioritize transparency and take input from a broad range of interested judges, lawyers and academics. The subcommittee elected not to move forward with proposals that were more substantive or where court of appeals’ decisions were in conflict and the Supreme Court potentially may weigh in. This included cy pres relief in settlements, issue classes, and ascertainability. The proposed amendments that if ultimately approved will go into effect in December of 2018 appear to be relatively uncontroversial. The amendments would provide more detail regarding what must be provided to a district court with a motion for preliminary approval of a class settlement; expressly permit electronic notice to class members (which is already taking place); insert into the rule criteria for approval of class settlements consistent with existing law (with no intent to override existing law); expressly require that objections to class settlements be made with specificity; and require that any payment to an objector or the objector’s counsel be approved by the district judge. Judge Dow noted that the subcommittee has not been disbanded and it may consider other proposals in coming years.
Class Action Settlements (Tristan Duncan of Shook Hardy)
Tristan Duncan explained how the class action settlements that courts are finding the most problematic involve trifling issues, such as arguments for trivial additions to disclosures regarding corporate transactions. Settlements of such cases fail to provide any real value for class members, only attorneys’ fees for class counsel. Similar “trifling” cases that have been dismissed involved the size of eye drops purportedly being too large and wasteful, and the amount of lip balm that cannot be accessed in a container.
Recent Developments in TCPA Class Actions (Christine Reilly of Manatt Phelps and Christine Brandt of Macy’s)
This session covered the latest developments in Telephone Consumer Protection Act (TCPA) cases. The D.C. Circuit’s long-awaited decision in ACA International v. FCC is expected to address important issues about what constitutes an automatic telephone dialing system, the meaning of “called party” (whether it means a current subscriber or intended recipient) and revocation of consent. Courts have not been particularly well-receptive to arguments under Spokeo of a lack of injury or harm under the TCPA. The FCC is anticipated to become more business friendly under new chairman Ajit Pai. A newly emerging issue is whether a voice broadcast (where your phone does not ring but you have a voicemail) is subject to the TCPA.
Ethics (Matthew Berkowitz of Carr Maloney)
This session covered, among other topics, ethical issues regarding communications with putative class members (generally permitted in most jurisdictions, as long as counsel clearly states their role and makes no misrepresentations), potential settlements with putative class members, limitations on what class counsel can agree to as part of a settlement, and cy pres settlements where an attorney has a relationship with a cy pres beneficiary.