Judge Kavanaugh has had very few occasions to address the
procedural mechanism of Rule 23. This is not surprising given that
few class-action cases end up in the D.C. Circuit. But where he
has, Judge Kavanaugh's commentary suggests that he may be
mindful of the realities and difficulties class-action defendants
face.
Some insight into Judge Kavanaugh's views on class actions
can be inferred from his dissenting opinion in Cohen v. United
States, 650 F.3d 717 (D.C. Cir. 2011). In Cohen, the
IRS had illegally collected an excise tax on long-distance phone
calls. To remedy the problem, the IRS set up a "simple"
refund procedure for taxpayers that would allow them to check a box
on their tax returns for a standard refund amount. Id. at
719. Taxpayers who were unhappy with their refund amount under the
refund rules could file a tax refund suit. Judge Kavanaugh noted
that about 90 million Americans took advantage of the refund
program.
