The Numbers Game: Dukes and Concepcion
By Robert J. Herrington – November 20, 2012
After the U.S. Supreme Court’s decisions in Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011),and AT&T Mobility LLC v. Concepcion, 131 S. Ct. 1740 (2011), many predicted the end of the class action. Some thought Dukes would make it so hard to obtain class certification that plaintiffs’ lawyers would stop filing cases (or at least slow down). Others thought Concepcion would bring consumer class actions to a screeching halt, as more and more companies adopted class action waiver provisions in their agreements with consumers.
For those of us on the front lines, the battle still seems to be raging, with dozens of new class actions filed each week. Lawsuits targeting the food and beverage industry seem particularly popular. Other hot areas include privacy class actions, wage and hour litigation, and products liability cases targeting biotech companies.
But what about the overall picture? Are class action filings down in the year or so since Dukes and Concepcion? Should we, as class action practitioners, start looking for other work?
Unfortunately, these questions are remarkably difficult to answer. Official, up-to-date statistics on the number of class actions filed in state and federal courts are largely unavailable. This article relies on a variety of surveys and other sources to try to piece together a picture of the current class action landscape. Let’s take a look.
A recent NERA survey [PDF] indicates that securities class action filings have remained stable over the past year. Studying the first half of 2012, the survey concludes that "[s]ecurities class actions filed in Federal court have continued to be filed at their historical pace so far in 2012." This conclusion is based on NERA's finding that 116 actions have been filed in the first half of 2012. If filings continue at this pace, NERA projects that 232 securities class actions will be brought this year, which would exceed the 224 filed in 2011 and would be the largest number of cases brought in a given year since 2008.
The law firm of Carlton Fields published a Class Action Survey in April 2012 [registration, but no fee, required], which indicates that companies are expecting more class action litigation. The survey was based on interviews of attorneys in more than 300 in-house legal departments. The survey reports that respondents expect to be handling, on average, 5.4 class action matters per company during 2012, up from 4.4 matters in 2011.
The most current Fulbright & Jaworski Litigation Trends Report [registration, but no fee, required], published in late 2011, noted that companies continued to see a gradual rise in class action filings. Further, according to the report, 25 percent of respondents stated that at least one class action had been brought against them in the prior 12 months, with that figure rising to 41 percent for respondents having revenues exceeding $1 billion.
BTI Consulting Group’s 2012 Strategic Review [fee required], which is based on surveys of in-house counsel, predicts strong demand for technically savvy class action litigators with experience in the biotech field, particularly pharmaceutical and medical device companies.
In addition to these surveys, we attempted to independently gather current information about the number of class actions being filed. After looking at a number of potential sources, it appears the best source of information was the Courthouse News Service (CNS). Using that service, we searched for the total number of class actions filed in various jurisdictions each year since 2010 to see whether there was an identifiable change after the Dukes and Concepcion decisions were handed down in mid-2011. The results are by no means definitive, nor are they a scientific survey, as it is somewhat unclear how comprehensive CNS’s data are. The results are summarized in the table below.
Number of Class Actions
California State Courts
All California Federal Courts
All Federal Courts Combined
As you can see, it appears that the total number of class actions filed in federal court in 2012 will exceed the number filed in 2010 and be roughly the same as the number filed in 2011. For whatever reason, it appears that significantly fewer class actions are being filed in California state court in 2012 than in the previous two years.
So what are we to conclude? From the early returns, it appears that those predicting the class action’s demise may be overestimating the impact of the Supreme Court’s recent decisions. In the year or so since Dukes and Concepcion, available data show that thousands of class actions continue to be filed at a pace similar to the pace seen in 2010. As these issues continue to be litigated, perhaps there will be more of an impact on class action filings in the years to come. Only time will tell. Stay tuned.
Keywords: litigation, class action, derivative suits, consumer class actions, new case filings, California courts
Robert J. Herrington is an attorney at Greenberg Traurig, LLP, in Los Angeles, California.