Arbitration Clauses And Class Certification Standards: How The Supreme Court Is Limiting Plaintiffs’ Ability To Maintain Class Actions

The little-noticed impact of two distinct lines of decisions by the Supreme Court in recent years has given companies greater ability to limit the use of class action lawsuits and more effectively contest class certification. The current term may continue this trend, with four cases having the potential to significantly impact the ability of plaintiffs to bring or maintain class actions. Taken together, the Court's willingness to decide these issues and its decisions to date suggest that the Court is cutting back on plaintiffs' ability to successfully prosecute class actions while promoting defendant-companies' ability to avoid or defeat class actions.

The modern federal class action lawsuit gained prominence following Congress's revision of Federal Rule of Civil Procedure 23 ("Rule 23'') in the 1960s. Since that time, class actions have grown, both in terms of the number of filings and the amount of damages awarded, and have had a significant impact on how business