Tuesday, April 2, 2013

Fallout from Behrend

BNA Law Week reports that the Supreme Court granted cert, vacated the judgments and remanded two class actions yesterday.  RBS Citizens NA v. Ross, U.S., No. 12-165, certiorari granted, judgment vacated, remanded 4/1/13; Whirlpool v. Glazer Corp., U.S., No. 12-322, certiorari granted, judgment vacated, remanded 4/1/13.

BNA describes Ross as a case in which a bank is accused of unlawfully denying overtime pay.  The allegations involved the enforcement of an unofficial policy and the Seventh Circuit affirmed the grant of class certification. 

The Whirlpool case comes out of the Sixth Circuit and a very similar issue class action was certified in the Seventh Circuit. This case involves allegations that Whirlpool sold faulty washing machines that got moldy.  I thought the Whirlpool case was a real poster child for the correct use of the issue class action, and I'm not sure on what grounds the Court thinks that Behrend is relevant.  It seems to me that it is not, Behrend was not an issue class action and the questions that concerned the majority there related to feasibility of damages determinations.  Given the allegations regarding overtime pay in Ross, I understand why that case might have made sense to remand, but Whirlpool is a very different kind of case.   There are no damages issues in Whirlpool because it is a liability issue class action. 

At a minimum, as after Wal-Mart, I predict we will see a spate of reconsideration motions, decertification motions and more litigation post-Behrend

ADL

ETA: And for commentary on Behrend, see Sergio's Campos' latest post on Scotusblog

 

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