Keywords: constitutional challenges, due process, Fed. R. Civ. P. 23, federalism, standing, statutory damages, Supreme Court
A few months ago, my colleagues Kevin Ranlett, Phil Dupré, and I began writing a six-part series for Inside Counsel on potential constitutional challenges to class-action lawsuits. The series is now complete, and so I wanted to provide readers with links to our articles. In addition to our overview piece on the subject, we have addressed the following topics:
- Using due process and federalism-based arguments to prevent plaintiffs from applying a single state's law to a nationwide or multi-state class in an attempt to sidestep the variations in states' laws that otherwise would preclude class certification;
- Challenging proposed class actions that would purport to alter substantive rights or deprive the defendant of the right to present individualized defenses;
- Invoking Article III's standing requirements to defeat certification of putative classes that include uninjured class members;
- Opposing the excessive aggregation of potential statutory damages in a class action; and
- How to spot potential constitutional challenges in the first place.
Many of these arguments operate in tandem with (though are distinct from) the arguments that defendants often make to oppose class certification under Federal Rule of Civil Procedure 23. These constitutional arguments are often worth making in federal court. Not only are they powerful in their own right, but they may also increase the appeal of the defendant's other arguments, because a federal court can avoid confronting these thorny constitutional questions only by denying certification on Rule 23 grounds.
Asserting constitutional arguments can be even more important in state courts for two reasons. First, some states apply—either formally or in practice—less stringent criteria for certifying a class than the federal rules require, and so constitutional arguments may help fill the gap. Second, constitutionally-based arguments may be the only way to preserve objections to class certification for U.S. Supreme Court review, which is certainly worth doing in any class action of significance.
Originally published March 14, 2013
Edited by
Archis A. Parasharami 
and
Kevin S. Ranlett
Visit us at mayerbrown.com
Mayer Brown is a global legal services provider comprising legal practices that are separate entities (the "Mayer Brown Practices"). The Mayer Brown Practices are: Mayer Brown LLP and Mayer Brown Europe – Brussels LLP, both limited liability partnerships established in Illinois USA; Mayer Brown International LLP, a limited liability partnership incorporated in England and Wales (authorized and regulated by the Solicitors Regulation Authority and registered in England and Wales number OC 303359); Mayer Brown, a SELAS established in France; Mayer Brown JSM, a Hong Kong partnership and its associated entities in Asia; and Tauil & Chequer Advogados, a Brazilian law partnership with which Mayer Brown is associated. "Mayer Brown" and the Mayer Brown logo are the trademarks of the Mayer Brown Practices in their respective jurisdictions.
© Copyright 2013. The Mayer Brown Practices. All rights reserved.
This Mayer Brown article provides information and comments on legal issues and developments of interest. The foregoing is not a comprehensive treatment of the subject matter covered and is not intended to provide legal advice. Readers should seek specific legal advice before taking any action with respect to the matters discussed herein.
