I’ve written before about legal giant Arthur Miller (now with the Lanier Law Firm) and his pessimistic take on modern federal procedure. In the ‘teens, he has largely worried about the effect of procedural rulings on the plaintiff’s right to her day in court. Now, in his latest article, The Preservation and Rejuvenation of Aggregate Litigation: A Systemic Imperative, 64 Emory L.J. 293 (2014), he expresses concerns about the future of the class action. They’re not groundbreaking, but there is no reason to expect Professor Miller to break ground at this phase in his distinguished career. Instead, it’s important to look at what he says because he is the most legitimate voice class action plaintiffs’ counsel have. So, what does he have to say? Well, to start, he continues to employ some of the same pro-plaintiff assumptions as in his last jeremiad. He assumes that all claims brought should be tried, even if they can be disposed of before trial. He continues to characterize plaintiffs’ lawyers as “entrepreneurial” and “social interest,” and “defense interests” as “scorched earth.” And he harbors a newfound suspicion that concerns about electronically-stored information have not “been advanced honestly.”
Class action practice has become front-loaded to its detriment. In keeping with his previous jeremiad, Professor miller believes that there are too many “stop signs” for plaintiffs on the way to certification of a class. In particular, he criticizes the enforcement of the “rigorous analysis” standard (even though courts themselves don’t always know how to apply it), and worries that:
The certification process has become so arduous that its cost and delay – coupled with the risk of eventual failure – either deter the institution of potentially meritorious class actions or lower their settlement value.
The class action isn’t dead (yet). In general, Professor Miller is optimistic about the ability of plaintiffs’ counsel to innovate, and find the “back doors” in adverse rulings. He is particularly optimistic about the use of issue certification, which he views as “somewhat of a game-changer.” He specifically endorses the tactic of marrying a request for Rule 23(b)(2) relief with a request for issue certification, a la McReynolds v. Merrill Lynch.
Plaintiffs’ difficulties with class actions are largely self-inflicted. Plaintiffs’ counsel (well, some unnamed plaintiffs’ counsel) tend to act “like pigs at the trough” and play “territorial games.” Instead, he believes that class action plaintiffs’ attorneys should organize in order to combat the reputation they have been tarred with by “defense interests.” But he also points out that plaintiffs would do well to pay more attention to complaints before they file them, to make sure they actually have valid, certifiable claims:
The lesson this history teaches is that considerable pre-institution attention must be paid by counsel to the composition and definition of the class as well as the substantive claims to be advanced. The natural plaintiff’s instinct to be overinclusive in framing classes must be resisted in some situations. Less may be preferable to more.
So what’s the takeaway here? In general, class actions are doing just fine. Even Arthur Miller says so. But, more importantly, the largest problems plaintiffs currently face—what look like big wins for defendants on the commonality, predominance, and ascertainability fronts—may just be the consequence of over-inclusive classes. Which is what may of us “defense interests” have been saying for quite some time.