Class action plaintiffs aren’t likely to fare any better at the U.S. Supreme Court with the potential addition of Judge Brett Kavanaugh .
President Donald Trump named Kavanaugh, 53, as his official nominee July 9 to fill the seat of Justice Anthony Kennedy . Kennedy, 81, announced his retirement from the court on the last day of the term June 27.
Kennedy was often the court’s swing vote on social issues, but voted consistentlywith the court’s conservative wing to limit the class mechanism.
Kavanaugh, who currently sits on the U.S. Court of Appeals for the District of Columbia Circuit, may be even more conservative on class actions than Kennedy, Maria Glover told Bloomberg Law. She pointed to a 6–2 pro-plaintiff decisionKennedy authored in 2016.
Glover sees Kavanaugh’s decisions on the D.C. Circuit as a triple threat to class actions.
First, he has restricted class action procedures, for example, upholding class action waivers in mandatory arbitration agreements, Glover, professor at Georgetown Law in Washington specializing in complex litigation, said.
Second, he has restricted statutes that typically generate class cases, such as those in the securities and employment realms.
And third, he has restricted the power of agencies that might either bring collective action or might curtail restrictions on collective action, she said. She used to the Consumer Financial Protection Bureau as an example.
Kavanaugh is “wall,” a “solid goalie” blocking class actions and leaving class attorneys “running out of moves,” Glover said.
Kavanaugh didn’t write any major procedural decisions interpreting the federal rules that govern class actions or multidistrict litigation while on the D.C. Circuit, Maureen Carroll told Bloomberg Law.
But he wrote a dissent in a tax case that was so scathing the majority implied he was treating the plaintiffs as “‘raiders in pursuit of an unwarranted windfall’ rather than (as the majority viewed them) ‘aggrieved citizens in search of accountability,’” Carroll, who teaches civil procedure at University of Michigan Law School in Ann Arbor, said.
Brian Fitzpatrick of Vanderbilt Law School, Nashville, Tenn., pointed to the same opinion. His “gratuitous (by his own admission!) attack on class actions in Cohen v. United States does not bode well for class action lawyers.”