A few months ago, my colleagues Kevin Ranlett, Phil Dupré, and I began writing a six-part series for Inside Counsel on potential constitutional challenges to class-action lawsuits. The series is now complete, and so I wanted to provide readers with links to our articles. In addition to our overview piece on the subject, we have addressed the following topics:
- Using due process and federalism-based arguments to prevent plaintiffs from applying a single state’s law to a nationwide or multi-state class in an attempt to sidestep the variations in states’ laws that otherwise would preclude class certification;
- Challenging proposed class actions that would purport to alter substantive rights or deprive the defendant of the right to present individualized defenses;
- Invoking Article III’s standing requirements to defeat certification of putative classes that include uninjured class members;
- Opposing the excessive aggregation of potential statutory damages in a class action; and
- How to spot potential constitutional challenges in the first place.
Many of these arguments operate in tandem with (though are distinct from) the arguments that defendants often make to oppose class certification under Federal Rule of Civil Procedure 23. These constitutional arguments are often worth making in federal court. Not only are they powerful in their own right, but they may also increase the appeal of the defendant’s other arguments, because a federal court can avoid confronting these thorny constitutional questions only by denying certification on Rule 23 grounds.
Asserting constitutional arguments can be even more important in state courts for two reasons. First, some states apply—either formally or in practice—less stringent criteria for certifying a class than the federal rules require, and so constitutional arguments may help fill the gap. Second, constitutionally-based arguments may be the only way to preserve objections to class certification for U.S. Supreme Court review, which is certainly worth doing in any class action of significance.
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