Monday, June 11, 2018
SCOTUS Term: The Disappearing Class Action, But a Nod to Legal Scholarship
In today's decision in China Agritech v. Resh, the Supreme Court ruled that the filing of a class-action suit that is later dismissed on non-merits grounds does not equitably toll the statute of limitations for future class actions. Thus, when the class action fails--whether for lack of adequate representation or some other reason-- individual litigants may file their suits after the putative class action is dismissed, but a successive class action may not be filed when the statute of limitations has run. As Ronald Mann mentions over at SCOTUSBlog, the result in this case was not surprising. The Court has been highly skeptical of class-action practice in general, and extending an equitable-tolling rule to protect future class actions was always going to be a long shot.
However, it is nice to see that Justice Ginsberg's majority opinion and Justice Sotomayor's concurrence very thoughtfully engage with legal scholarship from civil procedure scholars. Both opinions discuss Rhonda Wasserman's influential article Dueling Class Actions, 80 B. U. L. Rev. 461 (2000), and the majority also cites to Tanya Pierce's excellent article, Improving Predictability and Consistency in Class Action Tolling, 23 Geo. Mason L. Rev. 339 (2016). The Court also relied on empirical work by Emery Lee and Thomas Willging at the Federal Judicial Center and cited to Elizabeth Cabraser & Samuel Issacharoff, The Participatory Class Action, 92 N. Y. U. L. Rev. 846 (2017). Although I am persuaded that Tanya's recommended approach would have been preferable to the one ultimately adopted by the Court, I appreciate seeing the Court engage with work of civil procedure scholars.