T wo years ago, dissenting in American Express v. Italian Colors Restaurant, Justice Elena Kagan, referring to the civil procedure rule on class actions, wrote, “To a hammer, everything looks like a nail. And to a court bent on diminishing the usefulness of Rule 23, everything looks like a class action, ready to be dismantled.” The message to people and companies involved in class actions was clear: “Be afraid. Be very afraid.”
Last term, the U.S. Supreme Court basically left class actions alone. This upcoming term, however, the court has already agreed to hear four cases that could dramatically restrict or terminate class action litigation in numerous ways. The concern is real. Will the court keep hammering class actions or let them be?
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