Duane Morris Class Action Review - 2023 - Report - Page 15
Suffice to say, 2022 was unlike any other year on the class action settlement front. As
success often begets copy-cats, corporations can expect the plaintiffs’ class action bar
will be equally if not more aggressive in their case filings and settlement positions in
2023.
Trend # 2 – The U.S. Supreme Court’s Decisions In 2022 Continued To
Define The Class Action Landscape
As the ultimate referee of law, the U.S. Supreme Court has continued to define and shift
the playing field for class action litigation.
The Supreme Court’s rulings in 2022 were no exception. Consistent with its approach
over the past several years, the Supreme Court issued three key rulings that impact the
plaintiffs’ bar’s ability to bring and maintain class actions. The rulings include Southwest
Airlines Co. v. Saxon, et al., 142 S.Ct. 1783 (2022), Morgan, et al. v. Sundance, Inc.,
142 S.Ct. 1708 (2022), and Viking River Cruises, Inc. v. Moriana, et al., 142 S.Ct. 1906
(2022).
The most effective tool for combating class actions may be the arbitration defense.
Contrary to the tendency of its rulings in recent years to expand the arbitration defense,
and thus make it more difficult for the plaintiffs’ bar to pursue claims on a class-wide
basis, this past year the U.S. Supreme Court pulled back on the arbitration defense by
narrowing its coverage.
After expanding this defense for
defendants over the past decade,
for the first year we can recall, the
Supreme Court issued two
decisions that arguably pull back on
and weaken the defense for
defendants. In a third decision, the
Supreme Court continued to protect
the defense from state efforts to
dilute its impact and limit its
application to claims asserted under
state law.
Arguably as important as the areas
for which it offered guidance, the Supreme Court declined to take up cases in two key
areas apt to continue to fuel defenses and, thus, to have a significant impact on class
action litigation over the upcoming year, including defenses regarding personal
jurisdiction and those that challenge a court’s ability to certify classes that include
uninjured members.
These defenses are analyzed in Trend # 9 and Trend # 8, respectively, below.
14
© Duane Morris LLP 2023
Duane Morris Class Action Review – 2023