Duane Morris Class Action Review - 2023 - Report - Page 11
CHAPTER 1
I.
Introduction
Class action litigation presents one of the most significant risks to corporate defendants
today. Procedural mechanisms like the one set forth in Rule 23 of the Federal Rules of
Civil Procedure have the potential to expand a claim asserted on behalf of a single
person into a claim asserted on behalf of a behemoth that includes every employee,
customer, or user of a particular company, product, or service, over an extended period.
With the potential for exponential enlargement of the size and scope of an action comes
the potential for exponential expansion of peril for a corporate defendant. Class action
lawsuits can create legal nightmares for the companies they target and their
management teams. The exposure created by such aggregation of claims can pose a
challenge to a corporation’s balance sheet, market share, and reputation. Sometimes
such litigation can push a defendant into bankruptcy.
The aggregation of claims also increases leverage for a plaintiff’s class action attorney.
The class action device is a powerful tool that can provide him or her an opportunity to
attempt to redistribute a sizable proportion of ultimate settlement dollars to his or her
own coffers. These attributes attract skilled litigation counsel to the plaintiffs’ class
action bar. They likewise make the effective defense of class action litigation a top
priority for corporate counsel facing class action lawsuits.
With the growth of class action litigation over the past decade, counsel for defendants
and plaintiffs alike have become more sophisticated, the statutory authority and case
law precedents have continued to evolve, and parties on both sides have expanded
their arsenal of tools to pursue and to defend these cases. As a result, class action
litigation entails ever-changing guideposts, new playbooks, and innovation. The
plaintiffs’ class action bar used Rule 23 to its fullest in 2022 in prosecuting class actions
against Corporate America. The result was a year like no other in the class action
space.
This chapter offers an overview of 2022 in terms of the most significant trends and
developments that shaped the class action landscape.
We identified 10 key trends that characterize the past year. These trends involve: (i)
massive class action settlements; (ii) U.S. Supreme Court decisional law on class action
issues; (iii) set-backs and statutory impediments to the arbitration defense; (iv) plaintifffriendly class certification conversion rates; (v) a simmering in government enforcement
actions paired with indications of more aggressive federal and state agency litigation
against corporations in the coming year; (vi) expansive growth in privacy class action
litigation; (vii) an expansion of data protection issues that continue to plague corporate
defendants; (viii) continued confusion over the problem of uninjured class members to
class certification; (ix) aggressive assertion of defenses based on personal jurisdiction
and venue; and (x) transformative rulings on the PAGA front including the first major
setback for the plaintiffs’ bar.
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© Duane Morris LLP 2023
Duane Morris Class Action Review – 2023